source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    FIBRE OPTIC PLUS, INC. v. XL SPECIALTY INSURANCE COMPANY ET AL.
    (AC 30366)
    Graendel, Alvord and Sullivan, Js.

      Argued October 15
    officially released December 7, 2010

      Campbell D. Barrett, with whom, on the brief, were Jon T. Kukucka and Felicia C. Hunt, certified legal intern, for the appellants (defendants).

      James H. Howard, for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

The defendants, XL Specialty Insurance Company (XL), American Networks International, LLC (American), and Semac Electric Company, Inc. (Semac), appeal from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiff, Fibre Optic Plus, Inc. On appeal, the defendants claim that the court improperly (1) rendered judgment more than 120 days after the completion date of trial in violation of General Statutes § 51-183b and (2) concluded that they waived application of the 120 day requirement set forth therein. Although we disagree with the trial court’s conclusion that the defendants waived application of § 51-183b, we nonetheless affirm the judgment of the trial court.

The following facts, as found by the court, and procedural history are relevant to the resolution of the defendants’ appeal. In the spring and summer of 2005, Darien High School was undergoing a large scale renovation project (project). Semac was the general contractor retained by the town of Darien to oversee the project, and American was a subcontractor employed on the project by Semac. Additionally, in accordance with General Statutes § 49-41 (a), XL, a bonding company, served as the surety for a payment bond underwriting the work performed on the project. Shortly after construction commenced, American approached the plaintiff, seeking assistance in completing wiring connection services for new computers being installed in the high school as part of the project. Pursuant to an oral agreement with American, the plaintiff subsequently provided substantial services for the project, yet was never fully reimbursed by American for its work. As such, in March, 2006, the plaintiff filed a five count complaint against American, Semac and XL, seeking payment of the outstanding balance owed for services it rendered on the project.

In October, 2007, a four day trial to the court was held, with the close of evidence occurring on October 25, 2007. Following the close of evidence, extensive posttrial briefing ensued, and the final briefs were submitted on January 22,2008. On May 14,2008, in a memorandum of decision, the court ruled in favor of the plaintiff on counts two, three, four and five with respect to the liability of the defendants; however, the court did not award any damages to the plaintiff on those counts. With respect to count one, the court stated that it had “not felt sufficiently persuaded, in the absence of oral argument, as to which side must prevail, or, if the plaintiff prevails, which [theory] . . . would form the appropriate [basis for] recovery . . . .” The court further explained that it would “schedule a hearing in late May or early June, 2008, to consider argument of the parties” as to the appropriate basis for relief under count one and, at that time, would also “weigh and determine the costs, interest and attorney’s fees with [regard] to all counts.”

Despite the court’s scheduling proposal, by June, 2008, no hearing had taken place to resolve the lingering liability and damages issues. Then, on June 4, 2008, the defendants filed an “objection to the court’s continued personal jurisdiction,” claiming that the court had failed to render judgment within 120 days of the completion date of the trial in violation of § 51-183b. As argued by the defendants, because the court had failed to render a timely judgment in accordance with § 51-183b, the court could not “retain continuing personal jurisdiction over the parties,” and any subsequent judgment against them would be voidable. On September 3, 2008, the hearing originally scheduled for May or June, 2008, was held. At the September 3, 2008 hearing, the court overruled the defendants’ objection to its “continuing personal jurisdiction,” rendered judgment in favor of the plaintiff on all counts, and awarded damages, including interest, attorney’s fees and punitive damages, in accordance with its ruling. This appeal followed.

Subsequently, this court granted the defendants’ motion for review of the trial court’s denial of their motion for articulation, directing the court to “articulate whether it [had] found a waiver [by the defendants] of the 120 day rule, and, if so, the factual basis underlying [this] conclusion.” In response, the court stated that the “defendants did impliedly, at least, waive the 120 day requirement,” and alternatively, “waiver was not necessary [under § 51-183b], because [completion of] the [trial] . . . did not occur until the court made its last determination” on September 3, 2008, with judgment being rendered that same day.

The defendants now claim that the court improperly rendered its September 3,2008 judgment more than 120 days after the completion date of trial in contravention of § 51-183b. Specifically, the defendants maintain that the 120 day time requirement began to run on the last day that posttrial briefs were submitted, or January 22, 2008. Therefore, the defendants argue, the court was required to render judgment on or before May 21, 2008, which it failed to do. Additionally, the defendants argue that the court’s conclusion that they had waived the application of the 120 day time requirement was clearly erroneous. We address each of the claims in turn.

I

The defendants first claim that the court improperly rendered judgment more than 120 days after the completion of trial in violation of § 51-183b. In support of this claim, the defendants assert that the appropriate date for assessing when the 120 day period began to run was the date that the final posttrial brief was filed, or January 22, 2008, rather than the date of the final hearing and argument on September 3, 2008. Our case law is clearly to the contrary.

Section 51-183b provides in relevant part: “Any judge of the Superior Court . . . who has commenced the trial of any civil cause, shall have power to continue such trial and shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section.” (Emphasis added.) In construing the meaning of the phrase “ ‘completion date of the trial’,” our Supreme Court, in Frank v. Streeter, 192 Conn. 601, 604, 472 A.2d 1281 (1984), endorsed the principle that “ ‘completion’ has been held to encompass the availability of all the elements directly or indirectly to be considered [by the trial court] in the rendering of a decision.” More recently, this court has had the opportunity to elaborate on this principle in a case with a procedural posture similar to that in the present case.

In Taylor v. King, 121 Conn. App. 105, 110, 994 A.2d 330 (2010), the plaintiff brought a civil action against the defendant, alleging, inter alia, breach of contract, unjust enrichment and violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The matter was tried to the court in March, 2008, and the presentation of evidence concluded on March 14, 2008. Id., 108, 110-11. “[Posttrial] [b]riefs were filed on April 22, 2008, and argument was held on May 27, 2008. On September 24, 2008, the court rendered judgment as to liability and damages in favor of the plaintiff on all counts . . . .” Id., 111. The defendant appealed, claiming, inter alia, that “the court [improperly] rendered judgment more than 120 days after the completion date of trial in violation of § 51-183b.” Id. In support of his argument, the defendant maintained that the “completion date of trial was April 22, 2008, the date posttrial briefs were filed . . . .” Id., 113. Moreover, the defendant claimed that, because no evidence was received by the court during the May 27,2008 argument, that date could not constitute the “completion date” under § 51-183b. Id., 114.

In rejecting the defendant’s arguments in Taylor, this court held that the “completion date of trial was the date on which the court last heard argument on the issues of liability and damages before it rendered judgment on those issues . . . .” Id., 108. In so ruling, this court explained that “[r]egardless of whether evidence was taken [during argument on May 27, 2008], and despite the fact that . . . case law cited by both parties considers the filing of posttrial briefs as the completion of trial, there can be no doubt that the [May 27, 2008] hearing could ‘be considered in the rendering of a decision’ ” within the meaning of Frank. Id., 114, citing Frank v. Streeter, supra, 192 Conn. 604. Thus, “[b]ecause it [was] unquestionable that this postbrief argument could be considered in the court’s decision . . . the completion date of trial” was May 27, 2008, and the trial court properly rendered judgment within 120 days on September 24, 2008. Taylor v. King, supra, 121 Conn. App. 115.

Here, as in Taylor, the defendants argue that the “completion date” of the trial for purposes of § 51-183b was the date that the final posttrial brief was filed, or January 22, 2008. The record, however, is clear that the date “on which the court last heard argument on the issues of liability and damages before it rendered judgment on those issues” was September 3, 2008. Id., 108. Despite the fact that the court previously had issued a memorandum of decision on May 14, 2008, 6we cannot say that the subsequent September 3, 2008 hearing failed to “encompass . . . elements directly or indirectly . . . considered [by the court] in the rendering of [its final] decision.” Frank v. Streeter, supra, 192 Conn. 604. As the defendants concede, “[t]he dispute underlying the present case was not, and could not have been, resolved until a decision on damages was rendered and a final determination as to count one was made.” Nonetheless, the court only resolved the issue of liability and damages following the September 3,2008 hearing at which both parties appeared and presented argument as to those issues. Consistent with Taylor, “[r]egardless of whether evidence was taken” by the court during the September 3, 2008 hearing, it is “unquestionable that this postbrief argument [was] considered in the court’s [final] decision . . . .” Taylor v. King, supra, 121 Conn. App. 114-15.

Thus, we conclude that the “completion date” of trial in the present case was September 3, 2008. We further conclude that, because the court rendered judgment that same day, the court fully complied with the 120 day time requirement set forth by § 51-183b. Accordingly, the defendants’ claim fails.

II

The defendants next claim that the court improperly determined that the “defendants [had] impliedly, at least, waive [d] [application of] the 120 day requirement,” primarily by way of the defendants’ “overall acquiescence with the litigation’s progress . . . .” Recently, we declined to adopt such reasoning for purposes of finding waiver under § 51-183b, especially where, as here, a litigant files a seasonable objection. See Foote v. Commissioner of Correction, 125 Conn. App. 296, 305, 8 A.3d 524 (2010) (“[b]ecause the most that can reasonably be required is objection seasonably made after the filing of the decision . . . the passage of time after the expiration of the 120 day statutory deadline but prior to the filing of the decision, even if significant, cannot, in and of itself, create a duty to speak” [citation omitted; internal quotation marks omitted]). Nonetheless, because we conclude that the court appropriately rendered judgment within 120 days of the completion date of trial pursuant to § 51-183b, there is no need to consider further whether the defendants waived the application of § 51-183b.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 49-41 (a) provides in relevant part: “Each contract exceeding one hundred thousand dollars in amount for the construction, alteration or repair of any public building or public work of the state or a municipality shall include a provision that the person to perform the contract shall furnish to the state or municipality ... a bond in the amount of the contract which shall be binding upon the award of the contract to that person ... for the protection of persons supplying labor or materials in the prosecution of the work provided for in the contract . . . .”

       Count one of the complaint, brought against XL, sought damages under General Statutes § 49-42 (a), which provides in relevant part: “Any person who performed . . . subcontracting work [pursuant to a contract within the scope of General Statutes § 49-41 (a)] . . . who has not received full payment for such . . . work . . . may enforce such person’s right to payment under the bond [provided for under § 49-41 (a)] . . . .” The remaining four counts of the complaint were brought against American and Semac, with causes of action sounding in breach of contract, unjust enrichment and violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. Also, we note that, although the initial complaint was amended in October, 2007, the operative complaint for purposes of this appeal is the March, 2006 complaint.

       Although the court did not specifically mention that it would also make a determination with respect to damages at the tentatively scheduled hearing, this conclusion is evident from the fact that the court did not award any damages in favor of the plaintiff in its May 14,2008 memorandum of decision, as well as the fact that damages eventually were ordered on all counts at the final hearing on September 3, 2008.

       We note that neither party in Taylor petitioned our Supreme Court for certification to appeal to consider the principal issue involved in both that case and the present appeal. It is axiomatic that one panel of this court cannot overrule the precedent established by a previous panel’s holding. See, e.g., First Connecticut Capital, LLC v. Homes of Westport, LLC, 112 Conn. App. 750, 759, 966 A.2d 239 (2009) (“this court’s policy dictates that one panel should not, on its own, reverse the ruling of a previous panel” [internal quotation marks omitted]); Boccanfuso v. Conner, 89 Conn. App. 260, 285 n.20, 873 A.2d 208 (same), cert. denied, 275 Conn. 905, 882 A.2d 668 (2005). As such, we are bound in this case by this court’s ruling in Taylor.

       Importantly, the court’s May 14,2008 memorandum of decision, rendered within 120 days of the filing of the final posttrial brief, specifically informed both parties of the need for further argument on the unresolved liability and damages issues. Were it otherwise, we would conclude that the court’s September 3, 2008 judgment would be void under § 51-183b.

       The defendants in the present appeal objected to the court’s “continuing personal jurisdiction” under § 51-183b fourteen business (court calendar) days after the court filed its initial May 14, 2008 memorandum of decision. Although we conclude that the court’s September 3, 2008 judgment did not run afoul of § 51-183b, for purposes of waiver, we disagree with the court, that the defendants failed to preserve application of the 120 day requirement set forth therein. See Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 420, 426 A.2d 1324 (1980) (objection filed ten days after judgment rendered is seasonable and no claim of waiver or consent tenable); Foote v. Commissioner of Correction, 125 Conn. App. 296, 8 A.3d 524 (2010) (motion to set aside judgment filed nine days after rendering of habeas decision is seasonable objection); Building Supply Corp. v. Lawrence Brunoli, Inc., 40 Conn. App. 89, 104, 669 A.2d 620 (objection filed within five days of judgment being rendered constitutes seasonable objection), cert. denied, 236 Conn. 920, 674 A.2d 1326 (1996).


author: BORDEN, J.

text:
    STATE OF CONNECTICUT v. AFSCME, COUNCIL 4, LOCAL 391
    (AC 30857)
    Beach, Bobinson and Borden, Js.

      Argued September 15
    officially released December 7, 2010

      J. William Gagne, Jr., with whom, on the brief, was Kimberly A. Cuneo, for the appellant (defendant).

      Thomas P. Clifford III, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Philip M. Schulz, assistant attorney general, for the appellee (plaintiff).
   Opinion

BORDEN, J.

The defendant union, AFSCME, Council 4, Local 391, appeals from the judgment of the trial court granting the application of the plaintiff, the state of Connecticut, to vacate an arbitration award. The defendant claims that the court improperly (1) vacated the arbitration award on the ground that it violated public policy and (2) considered a letter from the commissioner of correction (commissioner) in vacating the award. We affirm the judgment of the trial court.

An arbitrator made an award reinstating the grievant, Scott Gamache, to his employment with the plaintiff. The plaintiff applied to the court to vacate the award, and the defendant thereafter filed a motion to confirm the award. The court granted the plaintiffs application to vacate and denied the defendant’s motion to confirm. This appeal followed.

The following undisputed facts and procedural history are relevant to our resolution of the defendant’s appeal. The plaintiff and the defendant entered into a collective bargaining agreement effective December 2, 2004, through June 30, 2008. On December 5, 2005, the grievant, a correctional officer employed by the department of correction (department) and member of the bargaining unit represented by the defendant, was discharged from his employment for allegedly engaging in an open pattern of sexual harassment in knowing violation of the department’s administrative directive 2.2. The defendant filed a grievance against the plaintiff, and the parties submitted the controversy to arbitration pursuant to the terms of the collective bargaining agreement. The parties joined in framing the following issue to be submitted to the arbitrator: “Was the dismissal of the [g]rievant for just cause? If not, what shall be the remedy consistent with the [collective bargaining agreement]?”

On September 20, 2007, following a five day hearing, the arbitrator issued an arbitration award that reduced the grievant’s dismissal to a one year suspension from his position without pay or benefits. Specifically, the award provided: “The dismissal of the [g]rievant was not for just cause. The dismissal is reduced to a suspension of [the] [g]rievant from December 5, 2005, to December 5,2006. Said suspension shall be without pay and benefits. [The] [g]rievant is hereby reinstated as of December 6, 2006, to the position he held at the time of his termination. He shall be paid the wages that would have been due an employee in the position to which [the] [g]rievant is being reinstated commencing on December 6, 2006, less any earnings [the] [g]rievant received from December 6, 2006 to the date he actually returns to work. . . . [The] [g]rievant shall return to his position within thirty (30) days of the date of this [a]ward.”

In reaching his decision, the arbitrator also set forth the following factual findings: “[The] [g]rievant in this matter was disciplined by way of termination because of his violation of [a]dministrative [directive 2.2 . . . . The actions allegedly committed by [the] [g]rievant were verbal comments made about [the] [c]omplainant in this matter and other individuals. Some of the comments referred to oral sex in reference to [the] [complainant in this matter, which was done at his pleasure or as compensation for something [the] [c]omplainant wanted. Some of the actions charged against [the] [g]rievant involve [his] personal touching of [the] [c]omplainant. The comments and the physical touching were allegedly done publicly in front of other employees and inmates of the institution. The acts alleged . . . did not all happen at once, but it was alleged that the entire set of acts complained about . . . happened over a substantial period of time. . . .

“This [arbitrator does find that [the] [g]rievant knew about the [department’s] zero tolerance [policy] in reference to [a]dministrative [d]irective 2.2. Because of that, discipline may be called for even though the alleged acts were only done once. One could find that some of the witnesses stretched the truth to some extent because of their own personal feelings either for or against [the] [g]rievant or [the] [c]omplainant in this matter. This [arbitrator finds that the accusations made by [the] [c]omplainant are true and were substantiated by the witnesses presented by the [plaintiff ]; however, they were not sufficient to require the discipline given [the] [g]rievant. The [defendant] presented evidence of similar incidents as this case that established that the discipline given to [the] [g]rievant was too severe.” (Emphasis added.)

Thereafter, the plaintiff filed this application to vacate the arbitral award pursuant to General Statutes § 52-418. The plaintiff claimed that the enforcement of the award, inter alia, violated public policy referenced in Connecticut statutory and common law and disregarded “the managerial responsibility of the [plaintiff], as an employer” to enforce a “zero tolerance policy against sexual harassment in the workplace.” In response, the defendant filed a motion to confirm the award pursuant to General Statutes § 52-417.

The court, by memorandum of decision, granted the plaintiffs application to vacate the arbitrator’s award and denied the defendant’s application to confirm the award. The court first determined that there was a well-defined and dominant public policy against workplace sexual harassment as established by General Statutes § 46a-60 (a) and administrative directive 2.2. The court also noted that the grievant was aware of the department’s zero tolerance policy proscribing sexual harassment, “yet [he] repeatedly violated that policy over a long period of time. He continued his lewd and offensive conduct toward his fellow employee even after that employee asked him to stop.” Finally, the court concluded that “[a]nything less than termination of the employment of [the grievant] would be insufficient to uphold the important public policy against workplace sexual harassment.” Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly concluded that enforcement of the arbitration award would violate a clearly established public policy against workplace sexual harassment. We disagree.

We begin our analysis by setting forth the applicable law regarding our review of arbitral awards, as stated by our Supreme Court. “We have consistently stated that arbitration is the favored means of settling differences and arbitration awards are generally upheld unless an award clearly falls within the proscriptions of § 52-418 .... A challenge of the arbitrator’s authority is limited to a comparison of the award to the submission. . . .

“Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution.” (Citations omitted; internal quotation marks omitted.) State v. AFSCME, Council 4, Local 387, AFL-CIO, 252 Conn. 467, 473-74, 747 A.2d 480 (2000). Additionally, “[e]very reasonable presumption and intendment will be made in favor of the award and of the arbitrator’s acts and proceedings. Hence, the burden rests on the party challenging the award to produce evidence sufficient to show that it does not conform to the submission.” (Internal quotation marks omitted.) Hartford Steam Boiler Inspection & Ins. Co. v. Underwriters at Lloyd’s & Cos. Collective, 121 Conn. App. 31, 52, 994 A.2d 262, cert. denied, 297 Conn. 918, 996 A.2d 277 (2010).

“Although we have traditionally afforded considerable deference to the decisions of arbitrators, we have also conducted a more searching review of arbitral awards in certain circumstances. In Garrity v. McCaskey, [223 Conn. 1, 6, 612 A.2d 742 (1992)], this court listed three recognized grounds for vacating an award: (1) the award rules on the constitutionality of a statute ... (2) the award violates clear public policy ... or (3) the award contravenes one or more of the statutory proscriptions of § 52-418 (a). . . . The judicial recognition of these grounds for vacatur evinces a willingness, in limited circumstances, to employ a heightened standard of judicial review of arbitral conclusions, despite the traditional high level of deference afforded to arbitrators’ decisions when made in accordance with their authority pursuant to an unrestricted submission.” (Internal quotation marks omitted.) HH East Parcel, LLC v. Handy & Harman, Inc., 287 Conn. 189, 197, 947 A.2d 916 (2008). The issue raised in this appeal concerns the second recognized exception for vacating an arbitral award, namely, whether enforcement of the award reducing the grievant’s dismissal to a one year suspension violates a clear and well-defined public policy.

“The public policy exception applies only when the award is clearly illegal or clearly violative of a strong public policy. ... A challenge that an award is in contravention of public policy is premised on the fact that the parties cannot expect an arbitration award approving conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them. . . . [T]he public policy exception to arbitral authority should be narrowly construed and [a] court’s refusal to enforce an arbitrator’s interpretation of [collective bargaining agreements] is limited to situations where the contract as interpreted would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.” (Internal quotation marks omitted.) State v. Connecticut State Employees Assn., SEIU Local 2001, 287 Conn. 258, 272-73, 947 A.2d 928 (2008).

“A two-step analysis . . . [is] often employed [in] deciding cases such as this. First, the court determines whether an explicit, well-defined and dominant public policy can be identified. If so, the court then decides if the arbitrator’s award violated the public policy.” (Internal quotation marks omitted.) Id., 273. In addition, “[w]hen a challenge to a voluntary arbitration award . . . raises a legitimate and colorable claim of violation of public policy, the question of whether the award violates public policy requires de novo judicial review.” (Internal quotation marks omitted.) State v. AFSCME, AFL-CIO, Council 4, Local 2663, 257 Conn. 80, 90, 777 A.2d 169 (2001). Because the defendant’s challenge raises such a claim, we undertake de novo review of the award. In this regard, we emphasize that in conducting our review, we are not concerned with the correctness of the arbitrator’s decision; our concern is only whether the award can be lawfully enforced. State v. AFSCME, Council 4, Local 387, AFL-CIO, supra, 252 Conn. 474-75.

A

The defendant claims that the first prong of the aforementioned test is not satisfied because the plaintiff failed to identify an explicit, well-defined and dominant public policy in our state against workplace sexual harassment. The plaintiff counters that such public policy is clearly defined by administrative directive 2.2 and § 46a-60 (a). We agree with the plaintiff that a well-defined and dominant public policy against sexual harassment in the workplace is explicitly discemable from Connecticut law.

Our courts “have looked to a variety of sources in determining whether an arbitral award violates a well-defined public policy, and have cited, as examples of possible sources, statutes, administrative decisions and case law. ... In those cases in which we have vacated an arbitral award on public policy grounds, the public policy has most commonly been grounded in the General Statutes.” (Citation omitted.) MedValUSA Health Programs, Inc. v. MemberWorks, Inc., 273 Conn. 634, 657, 872 A.2d 423, cert. denied sub nom. Vertrue, Inc. v. MedValUSA Health Programs, Inc., 546 U.S. 960,126 S. Ct. 479, 163 L. Ed. 2d 363 (2005).

In State v. Connecticut State Employees Assn., SEIU Local 2001, supra, 287 Conn. 276-77, our Supreme Court specifically recognized a well-defined and dominant public policy against workplace sexual harassment as established by § 46a-60 (a) (8) (C), which proscribes hostile work environment sexual harassment. See footnote 5 of this opinion. The court reasoned that “the clear and unambiguous language of § 46a-60 (a) (8) (C) explicitly indicates that the maintenance of a hostile work environment constitutes sexual harassment and is prohibited by the laws of this state.” State v. Connecticut State Employees Assn., SEIU Local 2001, supra, 276-77. Accordingly, the court concluded that an “explicitly discemable” public policy against workplace sexual harassment was clearly defined and dominant under Connecticut law. Id., 277.

The defendant does not offer any argument refuting the precedential value of our Supreme Court’s decision in Connecticut State Employees Assn., SEIU Local 2001. Instead, it maintains that § 46a-60 (a) is not relevant in this case because it does not govern the grievant’s actions. Section 46a-60 (a), according to the defendant, only applies to the discriminatory practices of an employer and, therefore, does not extend to the actions of an employee.

The plain language of the statute, however, does not support such an interpretation. Section 46a-60 (a) (8) expressly prohibits workplace sexual harassment “by [am] employer, or the employer’s agent. . . (Emphasis added.) Consequentially, “[§] 46a-60 provides a cause of action, rooted in common law agency principles, on which to hold an employer hable for the conduct of its employees.” (Internal quotation marks omitted.) Boyles v. Preston, 68 Conn. App. 596, 608, 792 A.2d 878, cert. denied, 261 Conn. 901, 802 A.2d 853 (2002). Moreover, our ultimate concern in this context is not whether, under applicable agency principles, the grievant’s actions would be imputable to his employer. Our relevant inquiry is whether “the statute relied upon as a ground for the alleged public policy [is] too tenuously related to the subject matter to constitute a ground for a clearly defined and dominant public policy.” MedValUSA Health Programs, Inc. v. MemberWorks, Inc., supra, 273 Conn. 660. We conclude that § 46a-60 (a) is sufficiently linked to the conduct of the grievant and, therefore, is adequate to establish a well-defined and dominant public policy against workplace sexual harassment in this case.

B

We next consider the second prong of our inquiry, namely, whether the arbitral award reinstating the grievant to his position as a correctional officer, following a one year unpaid suspension, would violate this state’s clear public policy against workplace sexual harassment. The defendant claims that, even if § 46a-60 (a) identifies a strong public policy against workplace sexual harassment, the plaintiff has not met its burden of demonstrating that the enforcement of the arbitral award clearly violates that policy. We are not persuaded.

Once it has been determined that an arbitral award implicates a well-defined and dominant public policy, “the ultimate question remains as to whether the award itself comports with that policy. ” Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., 252 Conn. 416, 429, 747 A.2d 1017 (2000). “Our analysis of this issue is confined to the facts as found by the arbitrator.” State v. Connecticut State Employees Assn., SEIU Local 2001, supra, 287 Conn. 277.

As set forth previously, the arbitrator found that the grievant directed lewd, sexually explicit comments toward his coworker. Specifically, the arbitrator explained that these comments referred to his coworker performing oral sex for his own pleasure and in a quid pro quo exchange for something he wanted. Additionally, the arbitrator found that the grievant engaged in the unwanted physical touching of his coworker. The arbitrator noted that the lewd comments and unwanted touching were done publicly in front of other employees and inmates at the correctional institution. Moreover, the acts complained of did not emanate from a single occurrence but, instead, happened over a substantial period of time. As we explain below, in light of the egregious nature of this conduct, we conclude that the court properly vacated the arbitral award at issue, as the reinstatement of the grievant as a correctional officer would frustrate this state’s strong public policy against workplace sexual harassment.

It is undisputed that the department had implemented a zero tolerance position with respect to workplace sexual harassment, as reflected by administrative directive 2.2. See footnote 1 of this opinion. Equally undisputed, and supported by the record before us, is that the grievant openly and knowingly violated this directive on multiple occasions. “The law is clear that an employer may not stand by and allow an employee to be subjected to a course of . . . [sexual] harassment by co-workers .... Accordingly, an employer will be held hable for harassment perpetrated by its employees if the employer provided no reasonable avenue for complaint, or . . . the employer knew (or should have known) of the harassment but unreasonably failed to stop it. . . . Put another way, once an employer has knowledge of a racially [or sexually] combative atmosphere in the work-place, he [or she] has a duty to take reasonable steps to eliminate it.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Brittell v. Dept. of Correction, 247 Conn. 148, 167-68, 717 A.2d 1254 (1998). Although the plaintiff contends that the grievant’s one year suspension was sufficient to uphold the department’s policy against sexual harassment, we disagree and conclude that his reinstatement would seriously undermine the plaintiffs responsibility to provide a sexually nonhostile work environment.

In Board of Police Commissioners v. Stanley, 92 Conn. App. 723,887 A.2d 394 (2005), this court reviewed an arbitral award that reinstated a police officer to his position with a municipal police department. The officer’s employment had been terminated following a series of complaints related to his sexually harassing behavior. Id., 726. Affirming the trial court’s vacatur of that arbitral award, we concluded that the reinstatement of the officer to the police force was at odds with established federal law that imposed liability against municipalities and their agents for civil rights violations. Id., 739,742. We reasoned that because the municipality was “potentially liable ... for the [officer’s] actions and its failure to take remedial steps to prevent a police officer from engaging in harassment and misconduct, particularly when there [was] a pattern of such inappropriate behavior,” our enforcement of an arbitral award reinstating the officer “would violate federal policies encouraging municipalities to remedy and to prevent constitutional violations by their employees.” Id., 742-43. This reasoning applies with equal force in the present case; our enforcement of the arbitral award reinstating the grievant as a correctional officer would be inconsistent with antidiscrimination laws that encourage employers to take reasonable steps to combat sexual harassment perpetuated by employees that creates a hostile work environment. See Newsday, Inc. v. Long Island Typographical Union, No. 915, CWA, AFL-CIO, 915 F.2d 840, 845 (2d Cir. 1990) (arbitral award reinstating employee, discharged for sexually harassing female coworkers, in conflict with employer’s “legal duty to eliminate sexual harassment in the work place”), cert. denied, 499 U.S. 922, 111 S. Ct. 1314, 113 L. Ed. 2d 247 (1991).

Although the defendant raises several cases that highlight our traditional deference to the determinations of arbitrators, we agree with the court that this particular case “poses a narrow, blatant example of the department of correction’s proper exercise of its power to dismiss.” State v. AFSCME, Council 4, Local 387, AFL-CIO, supra, 252 Conn. 478. Permitting the arbitrator to circumvent the disciplinary actions of the department not only undermines the enforcement of its zero tolerance policy against workplace sexual harassment but also countermands the “great deference [afforded] to prison administrators in their operation and management of correctional facilities.” Beasley v. Commissioner of Correction, 50 Conn. App. 421, 426, 718 A.2d 487 (1998), aff'd, 249 Conn. 499, 733 A.2d 833 (1999). Moreover, “[t]he fact that this egregious misconduct concededly occurred while the employee was on the job distinguishes it from other cases of employee misconduct in which courts have upheld arbitral awards that reduced sanctions against employees from discharge to suspension.” State v. AFSCME, Council 4, Local 387, AFL-CIO, supra, 479 (Peters, J., concurring in the result). Applying these principles, we conclude that, on the basis of the findings set forth by the arbitrator, the court properly concluded that the defendant sustained its burden of establishing that the arbitral award in this case violated an explicit, well-defined and dominant public policy against workplace sexual harassment.

II

We turn next to the defendant’s claim that the court improperly considered a letter from the commissioner in vacating the arbitral award. We disagree.

The following additional facts are relevant to our analysis. On or about January 22,2008, the plaintiff filed a memorandum of law in support of its application to vacate the arbitral award that reinstated the grievant. Attached to that memorandum was a copy of a letter that was written from the commissioner to the office of the attorney general, dated October 29,2007, requesting permission to vacate the award. That letter contained the commissioner’s version of the testimony as elicited at the arbitration hearing and provided direct quotations of the sexually explicit comments made by the grievant, described in greater detail his unwanted lewd touching and expressed her own views on the severity of his misconduct.

The defendant, in its opposition memorandum, made no objection to the plaintiffs attachment of the commissioner’s letter, nor was there any request at oral argument before the trial court that it be stricken from the record. The court, thereafter, recited those pertinent portions of the letter verbatim in the factual background section of its memorandum of decision.

On appeal, the defendant claims that the court improperly considered the commissioner’s letter in granting the plaintiffs application to vacate the arbitral award. Specifically, the defendant contends that, in reaching its conclusion that the award violated clear public policy, the court improperly relied on certain facts that were not a part of the record at the arbitration hearing.

Although we are mindful that “courts are bound by the arbitrator’s factual findings when reviewing a claim that an award violates public policy”; HH East Parcel, LLC v. Handy & Harman, Inc., supra, 287 Conn. 204; we stress that, as set forth previously, appellate review of such a claim is de novo. The trial court’s findings, therefore, are not entitled to deference on appeal, and, instead, our conclusions must be supported by the arbitrator’s factual findings. See Enfield v. AFSCME, Council 4, Local 1029, 100 Conn. App. 470, 479, 918 A.2d 934, cert. denied, 282 Conn. 924, 925 A.2d 1105 (2007). As we made clear in part I B of this opinion, our conclusion that the court properly determined that the arbitral award in this case violated clear public policy was reached on the basis of the findings as set forth by the arbitrator. Accordingly, we conclude that the facts in the arbitral record, irrespective of the commissioner’s letter, adequately supported the court’s ultimate legal conclusions.

The judgment is affirmed.

In this opinion the other judges concurred.

       Administrative directive 2.2 provides in relevant part: “It is the policy of the [d] epartment to provide its employees with a workplace free of sexual harassment, retaliation and related misconduct. The [d] epartment shall investigate and provide appropriate discipline, remedial measures and resolution for each complaint and each reported violation of this policy. Any employee who engages in conduct prohibited by this policy will be subject to discipline, up to and including termination. . . .”

       The complainant, Raymond D. Sayre, was a coworker of the grievant for seven months.

       General Statutes § 52-418 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides . . . shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       General Statutes § 52-417 provides in relevant part: “At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court ... for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.”

       General Statutes § 46a-60 (a) provides in relevant part: “It shall be a discriminatory practice in violation of this section ... (8) [f]or an employer, by the employer or the employer’s agent, for an employment agency, by itself or its agent, or for any labor organization, by itself or its agent, to harass any employee, person seeking employment or member on the basis of sex. ‘Sexual harassment’ shall, for the purposes of this section, be defined as any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when (A) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (B) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (C) such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment . . . .”

       Because we conclude that § 46a-60 (a) identifies a clear public policy against workplace sexual harassment, we need not decide whether administrative directive 2.2 identifies the same.

       Specifically, several women complained of incidents involving the officer’s inappropriate language and conduct, including his use of sexual language, unwanted touching of their buttocks, harassment with a police car’s flashing lights and the observation of one of the women while she was getting out of a shower. Board of Police Commissioners v. Stanley, supra, 92 Conn. App. 726.

       Our reference to the fact that the grievant’s actions took place in the workplace is not meant to imply that serious misconduct that occurs while employees are off duty cannot also form the basis for a finding that public policy has been violated. See State v. AFSCME, Council 4, Local 2668, AFL-CIO, 59 Conn. App. 793, 803-804, 758 A.2d 387 (fact that criminal conduct took place outside workplace not dispositive of whether employee’s reinstatement violated public policy), cert. denied, 255 Conn. 905, 762 A.2d 910 (2000).

       The plaintiff had filed its application to vacate the award on October 22, 2007.

       The letter provided in relevant part: “During the arbitration, the [c] omplainant testified to his statement that [the grievant] stated to him, ‘Hey Homo it’s about time you came downstairs and stop sucking cock.’ He also testified that six weeks after that when he was at the med box in the pharmacy he felt something touch his buttocks, he jumped and turned around and [the grievant] had a banana held at his crotch area, and made the statement in front of a witness, ‘he jumped like a girl. ’ The [c] omplainant went on to testily to his statement that at least [thirty] times [the grievant] called him a ‘ripper.’ The [cjomplainant didn’t know what that meant, and asked another employee what it meant and was told it meant ‘child molester. ’ He confronted [the grievant] and asked him to stop making those statements, but [the grievant] continued. The [c] omplainant bought a parrot from another coworker, [the grievant] overheard the conversation and later in the shift asked the [c] omplainant, ‘what did you have to do for the bird, give him a blow job.’ [The grievant] on other occasions also made comments about the [cjomplainant and a co-worker because they lifted weights together, and asked the [cjomplainant, ‘what do you guys do there grab each others crank.’ Witnesses corroborated that they overheard many of these comments. . . .
      “The actions of [the grievant] most clearly violated our zero-tolerance policy in a most severe manner. The violations of public policy and the actions by [the grievant] were confirmed to have occurred in the [arbitrator's findings. There has not been any case that rises to the level of these violations since the zero-tolerance went into effect. In effect the [a]rbitrator imposed his standards into a case that clearly warranted dismissal given the clear forewarning to which [the grievant] admitted having knowledge. Enforcement of the award would violate an explicit, well defined and dominant policy of our department warranting dismissal of employees who engage in [that] behavior . . . which is wholly incompatible with continued employment by the [s]tate. Anything less than dismissal, for repeated willful misconduct in the comments that were made, the physical action of shoving the banana in the [cjomplainant’s buttocks while making comments about his sexual preference, is not sufficient to uphold this important policy. To that end, we are requesting vacature of this award.”


author: BEAR, J.

text:
    WILLIAM J. LANE v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY ET AL.
    (AC 31251)
    Harper, Robinson and Bear, Js.

      Argued September 8
    officially released December 7, 2010

      Kathryn Calibey, with whom, on the brief, was Eugene K Swain, for the appellant (plaintiff).

      Ronald W. Lindlauf, Jr., for the appellee (named defendant).

      Francis J. Drumm III, with whom, on the brief, was Kenneth J. Mulvey, Jr., for the appellee (defendant Horace Mann Insurance Company).
   Opinion

BEAR, J.

This appeal comes to us on a reservation of a legal issue pursuant to General Statutes § 52-235 and Practice Book § 73-1. The stipulation of the parties presents one question for the advice of this court: “Whether an insured with two separate uninsured motorist insurance policies that cover the same vehicle for uninsured motorist benefits is barred from collecting the policy limits of both policies combined?” We answer the reserved question in the negative.

For purposes of this reservation, the parties stipulated to the following facts. In a September 12, 2006 motor vehicle accident, the plaintiff, William J. Lane, was injured while driving eastbound on Interstate 84 in East Hartford when a piece of an unidentified vehicle’s driveshaft, known as a universal joint, entered his 1992 Ford F-150 pickup truck (truck) through the windshield, striking him in the head or face. The accident caused him to suffer severe personal injuries, fair compensation for which exceeds $200,000.

The plaintiff was married approximately two months prior to the accident. Prior to his marriage, the plaintiff had purchased an insurance policy from the defendant Metropolitan Property and Casualty Insurance Company (Metropolitan) with effective policy dates from March 20, through September 20, 2006, and the plaintiffs truck was identified and insured under this policy. The policy included uninsured and underinsured motorist coverage with a per person limit of $100,000. On or about August 21, 2006, the plaintiff and his wife elected to consolidate their vehicle insurance with the defendant Horace Mann Insurance Company (Horace Mann), and the plaintiffs truck also was identified and insured under this policy. The plaintiff, however, did not terminate his policy with Metropolitan. The Horace Mann policy had effective dates from August 21,2006, through February 21, 2007. The Horace Mann policy also included both uninsured and underinsured motorist coverage with a per person limit of $100,000. The September 12, 2006 accident occurred during the thirty day period when the plaintiff and his truck were insured under both policies. It is undisputed that the plaintiff paid a separate premium for each of the policies.

The plaintiff commenced this action on July 5, 2007, alleging claims for uninsured motorist benefits against both Metropolitan and Horace Mann pursuant to each of the policies. The parties agree that the plaintiff was injured through the negligence of an unidentified motorist, which invokes uninsured motorist coverage as defined in both policies. The parties also agree that damages suffered by the plaintiff exceed $200,000. Both policies, however, contained so-called “other insurance clauses,” which state that if the insured is covered by another insurer providing uninsured motor vehicle coverage, then the total liability is limited to the single coverage with the highest limit of liability. Both Metropolitan and Horace Mann assert that the loss must be allocated pro rata between them up to a maximum of $100,000, the highest available limit of the policies at issue.

The trial court, Sferrazza, J., ordered that the legal issue governing the amount of applicable uninsured coverage available to the plaintiff be reserved to the Appellate Court. The parties stipulated that if the reserved question is answered in the negative, then the trial court shall render separate judgments in the amount of $100,000 against each defendant; the plaintiff shall be entitled to collect both judgments, for a total of $200,000, and, additionally, shall be entitled to collect applicable offer of judgment interest. The parties also agree that if the reserved question is answered in the affirmative, then the trial court shall render judgments in the amount of $50,000 against each defendant, and that the plaintiff shall recover a total of $100,000.

The plaintiff contends that Pecker v. Aetna Casualty & Surety Co., 171 Conn. 443, 370 A.2d 1006 (1976), invalidated “other insurance clauses” to the extent that they restrict the full indemnification of a claimant. The defendants argue that the holding of Pecker is limited by the subsequent passage of Public Acts 1993, No. 93-297 (P.A. 93-297), the relevant language of which has been codified as General Statutes § 38a-336 (d). The defendants contend that § 38a-336 (d) permits recovery on uninsured and underinsured motorist coverage only up to the limit of a single policy. Our first task, therefore, is to determine whether the legislature, in enacting § 38a-336 (d), intended it to apply where an insured has two separate policies with uninsured motorist coverage purchased by the insured for the same vehicle. We conclude that § 38a-336 (d) does not apply to the unusual facts of this case.

“It is axiomatic that the process of statutory interpretation involves a reasoned search for the intention of the legislature.” In re Valerie D., 223 Conn. 492, 512, 613 A.2d 748 (1992). “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra-textual evidence of the meaning of the statute shall not be considered.” General Statutes § l-2z.

The defendants do not cite any statute or regulation that would bar an individual from purchasing two separate uninsured motorist policies with uninsured motorist coverage on the same motor vehicle or that would invalidate one or both of such purchases after either or both occurred. Their argument, which is based on the language of § 38a-336 (d), is that an individual would be barred from collecting the policy limits of both such policies. Section 38a-336 (d) provides: “Regardless of the number of policies issued, vehicles or premiums shown on a policy, premiums paid, persons covered, vehicles involved in an accident, or claims made, in no event shall the limit of liability for uninsured and underinsured motorist coverage applicable to two or more motor vehicles covered under the same or separate policies be added together to determine the limit of liability for such coverage available to an injured person or persons for any one accident. If a person insured for uninsured and underinsured motorist coverage is an occupant of a nonowned vehicle covered by a policy also providing uninsured and underinsured motorist coverage, the coverage of the occupied vehicle shall be primary and any coverage for which such person is a named insured shall be secondary. All other applicable policies shall be excess. The total amount of uninsured and underinsured motorist coverage recoverable is limited to the highest amount recoverable under the primary policy, the secondary policy or any one of the excess policies. The amount paid under the excess policies shall be apportioned in accordance with the proportion that the limits of each excess policy bear to the total limits of the excess policies. If any person insured for uninsured and underinsured motorist coverage is an occupant of an owned vehicle, the uninsured and underinsured motorist coverage afforded by the policy covering the vehicle occupied at the time of the accident shall be the only uninsured and underinsured motorist coverage available.” (Emphasis added.)

The defendants argue that the relevant part of § 38a-336 (d) is the last sentence, and they assert that the use of the singular word “policy” limits an injured individual, occupying an owned vehicle, to the uninsured motorist coverage of one policy. We decline to read the last sentence in isolation, as the defendants request. See generally Durso v. Vessichio, 79 Conn. App. 112, 119, 828 A.2d 1280 (2003) (declining to read two statutory clauses independently of one another). We are persuaded that, had the General Assembly intended these provisions to be read independently, it would have constructed the statute to separate the first sentence containing the requirement of “two or more motor vehicles” from the subsequent sentences.

Because the first sentence of § 38a-336 (d) specifically applies to uninsured and underinsured coverage for two or more motor vehicles, we conclude that the remainder of such subsection also pertains only to situations involving two or more motor vehicles. The sentences following the opening sentence of subsection (d) set forth additional restrictions on recovery for occupants of nonowned and owned motor vehicles. The last sentence of the subsection provides that if any person with uninsured or underinsured motorist coverage is an occupant of an owned vehicle, the coverage available is limited to “the policy covering the vehicle occupied at the time of the accident . . . .” General Statutes § 38a-336 (d). It is reasonable to interpret the provision so that the use of the singular “policy” in this context includes uninsured and underinsured motorist coverage pursuant to each of the owner’s policies identifying and covering the vehicle occupied by the owner at the time of the accident. In this case, the plaintiff had two policies identifying and covering his truck for which he paid a separate premium to each defendant, and his claims are not based on coverage provided to “two or more motor vehicles,” e.g., his vehicle and his spouse’s vehicle.

The defendants note that our Supreme Court has interpreted the use of a single “policy” and plural “policies” in subsection (e) of § 38a-336 and argue that such interpretation should be applied to subsection (d). See Lash v. Aetna Casualty & Surety Co., 236 Conn. 318, 325, 673 A.2d 84 (1996); Covenant Ins. Co. v. Coon, 220 Conn. 30, 35-36, 594 A.2d 977 (1991) (construing § 38a-336 [d], now [e]). In Lash, the court could not “assume that the legislature, in enacting a statutory provision that uses a particular word in the plural and then the same word in the singular, intended for two different words to have the same meaning . . . .” Lash v. Aetna Casualty & Surety Co., supra, 325. In subsection (e), however, “the two different terms [were] used in the same sentence and referred] to two different things.” Id. General Statutes § 1-1 (f) instructs us, however, that “[w]ords importing the singular number may extend and be applied to several persons or things, and words importing the plural number may include the singular.” The court recognized this in Covenant Ins. Co., noting that “in the interpretation of statutes, singular terms may have a plural meaning.” Covenant Ins. Co. v. Coon, supra, 36 n.6. The use of the singular “policy” in subsection (e) is contrasted with the use of the plural “policies” within the same sentence. Section 38a-336 (e) “unequivocally refers to the liability provisions in the plural but the uninsured motorist provisions in the singular.” Id., 35-36; id. (construing § 38a-336 [d], now [e]). Additionally, even if the sixth sentence of subsection (d) of § 38a-336 is read independently of the first sentence therein, the use of the singular word “policy” does not limit the plaintiff to one policy when he purchased coverage under two separate policies for a vehicle he occupied at the time of the accident, and the singular word “policy” is reasonably applicable to each such policy. Each of the plaintiffs policies specifically covered his truck that he occupied at the time of his accident.

This reading of § 38a-336 (d) does not yield results prohibited by § l-2z. In this case, the plaintiff insured had the rare occurrence for a period of thirty days of owning two policies on his truck for which he had paid two separate premiums and of having a serious accident during such period of multiple coverage. Thus, requiring both defendants to pay the limits of coverage pursuant to their respective policies would not result in a windfall to the plaintiff because it is undisputed that the plaintiff paid for both primary policies on his truck, and his damages exceeded the limits of both primary policies combined. Furthermore, permitting a claimant with two separate insurance policies that provided uninsured and underinsured motorist coverage for the same vehicle to collect the limits of both policies when his damages exceed the total of such coverage would not prejudice either defendant. For a period of approximately one month, the plaintiff paid premiums for two separate policies covering the same owned vehicle. Each defendant insurer separately underwrote and priced its respective policy, and each insurer was separately compensated for assuming the risk that injury to the insured could occur, while he occupied such vehicle.

In addition, § 38a-336 (d), which codified part of P.A. 93-297, was intended to bar the judicially approved practice of “stacking.” Young v. Metropolitan Property & Casualty Ins. Co., 60 Conn. App. 107, 110 n.3, 758 A.2d 452, cert. denied, 255 Conn. 906, 762 A.2d 912 (2000). Our reading of the statute does not contravene the statutory prohibition of stacking. Prior to the enactment of P.A. 93-297, our Supreme Court defined stacking as referring “to the ability of the insured, when covered by more than one insurance policy, to obtain benefits from a second policy on the same claim when recovery from the first policy alone would be inadequate.” Nationwide Ins. Co. v. Code, 187 Conn. 386, 388 n.2, 446 A.2d 1059 (1982), overruled in part on other grounds by Covenant Ins. Co. v. Coon, 220 Conn. 30, 36 n.6, 594 A.2d 977 (1991). Although this definition facially could be broad enough to encompass a situation in which two separate uninsured motorist insurance policies cover the same vehicle, the court went on to elaborate the rationale for stacking, stating that it “is derived from the presumption that when the named insured purchases uninsured motorist coverage on more than one automobile, he intends to buy extra protection for himself and his family, regardless of whether his injury occurs in any one of his insured vehicles or elsewhere.” (Emphasis added; internal quotation marks omitted.) Id., 388 n.2. Therefore, our reading of § 38a-336 (d) is consistent with this definition.

The Minnesota Court of Appeals has addressed this issue directly. The court held that when two policies are written on the same vehicle, the legislative prohibition on stacking is inapplicable. Norton v. Tri-State Ins. Co. of Minnesota, 590 N.W.2d 649 (Minn App. 1999), review denied, 1999 Minn. LEXIS 348 (Minn. May 26, 1999). The Minnesota Supreme Court later explained the holding of the Norton decision: “In Norton, at the time of the accident, the injured party was occupying a Chevrolet Caprice that he had recently purchased. . . . After the accident, the injured party made claims for primary [uninsured motorist] benefits under two different insurance policies that both specifically described and insured the Caprice: an insurance policy purchased by the injured party after he bought the Caprice, and an insurance policy on the Caprice purchased by the prior owner, which was left in force because part of the purchase price remained unpaid. . . . The district court had concluded that the injured claimant could not make [uninsured motorist] claims under both policies because of the statutory prohibition on stacking. . . . The court of appeals reversed, concluding that the statutory prohibition on stacking applies to adding together the limit of liability for [uninsured motorist] and [underinsured motorist] coverages ‘for two or more motor vehicles’ . . . and ‘do[es] not govern the question of coverage of two policies written on the same vehicle' . . . .” (Citations omitted.) West Bend Mutual Ins. Co. v. Allstate Ins. Co., 776 N.W.2d 693, 700 (Minn. 2009).

For these reasons, we conclude that § 38a-336 (d) does not bar an insured with two separate primary policies containing uninsured motorist coverage on the same vehicle from collecting the policy limits of both primary policies combined if the damages to the insured equal or exceed such coverage.

The next step in our analysis is to determine whether the so-called “other insurance” clauses in the defendants’ contracts would bar the insured from collecting the limits of both policies combined.

The plaintiff cites Pecker v. Aetna Casualty & Surety Co., supra, 171 Conn. 443, in which the court held that “other insurance” clauses were invalid “[o]n the basis of the statutes and regulations of this state . . . .” Id., 452. The defendants contend that Pecker is invalid because it was decided when stacking automobile insurance policies was an accepted practice, and, therefore, its holding was abrogated by the passage of P. A. 93-297.

In Pecker, the plaintiff was riding a motorcycle when he was struck by an uninsured motorist. Id., 445. The motorcycle was insured under a policy from one company, but the plaintiff also was insured under an automobile policy issued to his father by a second insurance company. Id. The plaintiff settled with the second company for an amount less than the amount of the maximum $20,000 coverage under each policy. Because his damages exceeded the amount of the settlement, however, he also submitted a claim to the first company. Id. The first company denied coverage, claiming that, because of the second company’s payment, it was not liable pursuant to the “other insurance” clause in its policy. Id., 445-46.

The court reasoned that General Statutes § 38-175a required the insurance commissioner to adopt regulations with respect to automobile liability insurance policies and that such regulations “have the force of statute.” Id., 449. The court concluded that “an insurer may reduce the limits of its uninsured motorist coverage only as permitted by [Regs., Conn. State Agencies] § 38-175a-6 (d) . . . .” Id., 450. Under these regulations, an insurance company can reduce its liability under an uninsured motorist provision to the extent of any sums paid “by or on behalf of any person responsible for the injury” but “[t]he regulations do not authorize any reduction of coverage because of ‘other insurance.’ ” Id., 450-51. Section 38-175a-6 (a) of the Regulations of Connecticut State Agencies “clearly indicates that an insurer making payment under the uninsured motorist coverage provisions of its policy makes that payment ‘on behalf of the insured, not the uninsured motorist. On the basis of the statutes and regulations of this state, we hold that ‘other insurance’ clauses included in uninsured motorist coverage provisions are invalid.” Id., 452.

The rule that an insurer may reduce the limits of its uninsured motorist coverage only as permitted by § 38-175a-6 (d) of the Regulations of Connecticut State Agencies was consistently reiterated by the Supreme Court in decisions following Pecker, including Allstate Ins. Co. v. Ferrante, 201 Conn. 478, 483, 518 A.2d 373 (1986) (“an insurer may not, by contract, reduce its liability for such uninsured or underinsured motorist coverage except as § 38-175a-6 of the Regulations of Connecticut State Agencies expressly authorizes”); American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 199, 530 A.2d 171 (1987) (“the trial court was correct in finding that General Statutes § 38-175c and § 38-175a-6 [d] [1] of the regulations of Connecticut state agencies do not allow an insurer to reduce its liability for underinsured motorist coverage by an amount of money received by the insured pursuant to a dram shop policy”); Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 377, 593 A.2d 498 (1991) (“we have held repeatedly that an insurer may not, by contract, reduce its liability for such uninsured or underinsured motorist coverage except as § 38a-175a-6 [now § 38a-334-6] of the Regulations of Connecticut State Agencies expressly authorizes” [emphasis in orginal; internal quotation marks omitted]); Vitti v. Allstate Ins. Co., 245 Conn. 169, 179, 713 A.2d 1269 (1998) (“[consequently, we conclude that both § 38a-334-6 [d] [2] and the insurance policy, which tracks the language of the regulation, unambiguously allow the defendant to offset the available uninsured or underinsured motorist coverage by the amount of social security disability benefits paid or payable to the plaintiff’).

The argument that passage of P.A. 93-297 abrogates this rule is unfounded. Subsequent to the 1993 legislation, the Supreme Court reiterated that “an insurer may not, by contract, reduce its liability for . . . uninsured or underinsured motorist coverage, “except as authorized by § 38a-334-6 of the Regulations of Connecticut State Agencies.” (Internal quotation marks omitted.) Orkney v. Hanover Ins. Co., 248 Conn. 195, 201, 727 A.2d 700 (1999). This court has also reaffirmed this rule in Nichols v. Salem Subway Restaurant, 98 Conn. App. 837, 841, 912 A.2d 1037 (2006) (“an insurer may not, by contract, reduce its liability for such uninsured or underinsured motorist coverage except as § 38-175a-6 [now § 38a-334-6] of the Regulations of Connecticut State Agencies expressly authorizes”), and Jacaruso v. Lebski, 118 Conn. App. 216, 226, 983 A.2d 45 (2009) (“[consequently, because § 38a-334-6 [d] [1] [C] permits a reduction for benefits paid to settle a liability claim, the policy language must be deemed to provide the defendant with a legitimate reduction”).

For these reasons, we conclude that the exceptions permitting offsets against coverage set forth in § 38a-334-6 (d) of the Regulations of Connecticut State Agencies do not apply to the present case and that the defendants’ “other insurance” clauses do not bar an insured who purchased two separate uninsured motorist insurance policies that cover the same vehicle for uninsured motorist benefits from collecting the policy limits of both policies combined.

The reserved question is answered: “No.”

No costs will be taxed in this court to any party.

In this opinion the other judges concurred

       General Statutes § 52-235 provides: “(a) The Superior Court, or any judge of the court, with the consent of all parties of record, may reserve questions of law for the advice of the Supreme Court or Appellate Court in all cases in which an appeal could lawfully have been taken to said court had judgment been rendered therein.
      “(b) The court or judge making the reservation shall, in the judgment, decree or decision made or rendered in such cases, conform to the advice of the Supreme Court or the Appellate Court.”

       Practice Book § 73-1 sets forth the procedure and form for reservations.

       Metropolitan now asserts that the plaintiff was not covered by the Metropolitan policy at the time of the accident. Metropolitan cites a provision in its policy that states: “If you obtain other insurance on your covered automobile, any similar insurance provided by this policy will terminate as to that automobile on the effective date of the other insurance.” Metropolitan asserts that, pursuant to this clause, the plaintiff affirmatively terminated coverage through the act of procuring a similar policy of insurance with Horace Mann. The stipulation of the agreed upon facts, however, states: “All premiums due and owing on said insurance policy were paid, and said insurance policy was in full force and effect.” The new insurance provision was not included in the parties’ joint stipulation, nor does its possible effect appear to have been raised before the trial court or in Metropolitan’s answer to the plaintiffs complaint. Because we have been presented with a specific reserved question, we decline to address this argument.

       General Statutes § 38a-336 (e) provides: “For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subsection (b) of this section.”

       In holding that an insured with two separate primary uninsured motorist insurance policies that cover the same vehicle for uninsured motorist benefits may collect the policy limits of both policies combined, we do not intend to abrogate the rule that an insured may not recover double payment of damages under overlapping insurance coverage. See Buell v. American Universal Ins. Co., 224 Conn. 766, 775, 621 A.2d 262 (1993).

       Horace Mann argues that the legislative history of P.A. 93-297 reveals a public policy intent to preclude the aggregation of uninsured motorist policies that cover the same vehicle, including, but not limited to, more than one policy purchased on a specific vehicle. Although the legislative history of P.A. 93-297 is not a factor in our analysis pursuant to § l-2z, we see nothing in the legislative history to substantiate Horace Mann’s argument. The legislative history contains no reference to “stacking” as including two separately purchased insurance policies covering the same identified vehicle. In fact, any reference to the term in the legislative history overwhelmingly is in the context of two or more vehicles. See 36 H.R. Proe., Pt. 27, 1993 Sess., p. 9688, remarks of Representative Dale W. Radcliffe; Conn. Joint Standing Committee Hearings, Insurance and Real Estate, Pt. 2,1993 Sess., p. 391, remarks of Robert B. Adelman, president, Connecticut Trial Lawyers Association; Conn. Joint Standing Committee Hearings, supra, pp. 456-57, remarks of Michael Antonini, private insurance agent. The office of legislative research bill summary for the legislation defines stacking as “add[ing] together the limits of liability under the uninsured and underinsured motorist portion of their policy when it covers two or more vehicles or when they own two or more vehicles covered under separate policies to determine the limits of liability available to injured people for any single accident.” (Emphasis added.) Office of Legislative Research, Amended Bill Analysis for Substitute House Bill No. 5176, as amended by House Amendment A. Furthermore, a rationale for the antistacking provision was the rising cost of automobile insurance premiums. 36 S. Proc., Pt. 13, 1993 Sess., p. 4621, remarks of Senator Martin M. Looney. The purpose of § 38a-336 (d) was to tie uninsured and underinsured motorist coverage to the particular vehicle involved in an accident, thus reducing coverage for the consumer. See id., pp. 4607-4608, remarks of Senator Donald E. Williams, Jr.; see also id., p. 4614, remarks of Senator William A. Aniskovich. Were an insured with two separate primary policies on the same vehicle containing uninsured motorist coverage limited to recovery of only the limits of one of the policies, he would receive the same benefit as the insured whose coverage was limited by the abolition of stacking, but he would not receive all of the benefits for which he had paid separate premiums. Even had we determined that § 38a-336 (d) was not clear and unambiguous, an examination of the legislative history reveals that the General Assembly did not intend to include the present situation when enacting that provision.

       The “other insurance” clause at issue in Pecker was similar to the “other insurance” clauses in the defendants’ contracts, and Metropolitan and Horace Mann do not argue that the “other insurance” clauses in the plaintiffs contracts are different substantively from the “other insurance” clause at issue in Pecker.

      The clause in Pecker stated: “[I]f the Insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the Company shall not be liable for a greater proportion of any loss to which this coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.” Pecker v. Aetna Casualty & Surety Co., supra, 171 Conn. 445-46.
      Metropolitan’s clause states: “If there is other similar insurance, we will pay our fair share. The total amount of recovery under all policies will be limited to the highest of the applicable limits of liability of this insurance and such other insurance. Our fair share is the proportion that our limit bears to the total of all applicable limits. However, if you do not own the motor vehicle, our insurance will be excess over other similar uninsured or underinsured insurance available but only in the amount by which the limit of this policy exceeds the limits of liability of the other available insurance. If there is other excess or contingent insurance, we will pay our fair share. No payments will be made until the limits of all other liability insurance and bonds that apply have been exhausted by payments.”
      Horace Mann’s clause states: “If the insured sustains bodily injury while occupying your car, and your car is described on the declarations page of another policy issued by us or any other insurer providing uninsured or underinsured motor vehicle coverage: a. the total limits of liability under all such coverages shall not exceed that of the coverage with the highest limit of liability; and b. we are liable only for our share. Our share is that percent of the damages that the limit of liability of this coverage bears to the total of all such uninsured or underinsured motor vehicle coverage applicable to the accident.”

       General Statutes § 38-175a has since been transferred and is now § 38a-334.

       Section 38-175a-6 of the Regulations of Connecticut State Agencies, titled “Minimum provision for protection against uninsured motorists,” as it existed at the time of the decision in Pecker provides in relevant part: “(a) Coverage. The insurer shall undertake to pay on behalf of the insured all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle or motorcycle because of bodily injury sustained by the insured caused by an accident involving the uninsured motor vehicle or motorcycle. This coverage shall insure the occupants of every motor vehicle to which the bodily injury liability coverage applies. . . . (d) Limits of liability. The limit of the insurer’s liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of § 14-112 of the general statutes, except that the policy may provide for the reduction of limits to the extent that damages have been (1) paid by or on behalf of any person responsible for the injury, (2) paid or are payable under any workmen’s compensation or disability benefits law, or (3) paid under the policy in settlement of a liability claim. The policy may also provide that any direct indemnity for medical expense paid or payable under the policy or any amount of any basic reparations benefits paid or payable under the policy will reduce the damages which the insured may recover under this coverage and any payment under these coverages shall reduce the company’s obligation under the bodily injury liability coverage to the extent of the payment.” Pecker v. Aetna Casualty & Surety Co., supra, 171 Conn., 449-50.
      Section 38-175a-6 of the Regulations of Connecticut State Agencies, titled “Minimum provision for protection against uninsured motorists,” was transferred to § 38a-334-6, and at the time of the accident it provided in relevant part: “(a) Coverage. The insurer shall undertake to pay on behalf of the insured all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured or underinsured motor vehicle because of bodily injury sustained by the insured caused by an accident involving the uninsured or underinsured motor vehicle. This coverage shall insure the occupants of every motor vehicle to which the bodily injury liability coverage applies . . . . (d) Limits of liability. (1) The limit of the insurer’s liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of section 14-112 of the general statutes, except that the policy may provide for the reduction of limits to the extent that damages have been (A) paid by or on behalf of any person responsible for the injury, (B) paid or are payable under any workers’ compensation law, or (C) paid under the policy in settlement of a liability claim. (2) The policy may also provide that any direct indemnity for medical expense paid or payable under the policy will reduce the damages which the insured may recover under this coverage. (3) Any payment under these coverages shall reduce the company’s obligation under the bodily injury liability coverage to the extent of the payment. . . .”
      There is no substantive difference between these regulations with respect to the issues in this case, and thus the holding of Pecker is applicable thereto.

       The Supreme Court later noted that Pecker did not invalidate “other insurance” clauses for all purposes and such clauses were valid when used to establish the order of payment obligations. Aetna Casualty & Surety Co. v. CNA Ins. Co., 221 Conn. 779, 784, 606 A.2d 990 (1992). “Public policy is not violated when ‘other insurance’ clauses are used for the purpose of establishing the order of payment between insurers. When the insured is afforded full indemnification for a loss, there is no public policy issue controlling how insurers divide coverage among themselves.” Id., 785. The clauses shouldbe enforced if they “would not produce adverse consequences for the insured . . . .” Id.


author: HARPER, J.

text:
    IRA B. STECHEL v. PATRICIA LYNN FOSTER
    (AC 30985)
    Harper, Robinson and Schaller, Js.

      Argued September 7
    officially released December 7, 2010

      Joseph T. O’Connor, for the appellant (defendant).

      Heidi E. Opinsky, for the appellee (plaintiff).
   Opinion

HARPER, J.

The defendant in this postjudgment marital dissolution matter, Patricia Lynn Foster, appeals from the judgment of the trial court ordering her to transfer to the plaintiff, Ira B. Stechel, funds from her interest in a defined benefit pension plan (pension plan). On appeal, the defendant claims that the court’s order was improper because (1) it constituted a post-judgment modification of the parties’ agreement regarding the equitable division of the marital estate and (2) the court entered the order without holding an evidentiary hearing. We reverse in part the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. The parties’ marriage was dissolved on May 21, 2008. The parties did not reduce their separation agreement to writing but orally conveyed the agreement to the court during the dissolution hearing. As part of the settlement agreement, the defendant was to transfer to the plaintiff, pursuant to a qualified domestic relations order (QDRO), her interest in a pension plan, which, at the time of the dissolution hearing, amounted to approximately $734,000. In addition, the defendant was to repay the plaintiff a loan of $50,000, which she had taken against the pension plan. At the conclusion of the court’s canvass of the plaintiff concerning the separation agreement, the court noted: “It is the court’s finding that between both of the parties it is understood that there should be, absent fluctuations, approximately $734,000 in [the] QDRO.”

Subsequently, the defendant refused to sign the QDRO, and the plaintiff filed a motion to enjoin. On March 27, 2009, the court heard arguments on the motion to enjoin. At the time of the hearing, the defendant asserted that, due to poor economic conditions, the amount of money in the QDRO had decreased to approximately $605,000. The defendant argued that pursuant to the terms of the May 21, 2008 judgment of dissolution, the plaintiff was entitled to 100 percent of the funds in the QDRO but was not entitled to any fixed sum. Conversely, the plaintiff claimed that pursuant to the terms of the judgment he was entitled to a fixed sum of $734,000, to be paid out of the QDRO. At the conclusion of the hearing, the court granted the motion to enjoin and ordered that “the QDRO with whatever existing amount be signed over to [the plaintiff] and then there should be a determination of a deficiency between that amount and the amount of the judgment, which was $734,000 plus . . . the $50,000 [which] has already been paid.” The court also ordered that the defendant “pay . . . the deficiency from a sale of assets.”

The defendant filed this appeal on April 15, 2009, claiming that the court’s March 27, 2009 order was improper because it was a postjudgment modification of the court’s May 21, 2008 judgment of dissolution and because the court issued it without holding an evidentiary hearing. We agree with the defendant as to the first claim and reverse the judgment of the trial court only to the extent that the judgment modifies the original property distribution. Because the defendant’s second claim is related solely to the portion of the judgment that we reverse on the basis of her first claim, we need not reach the merits of her second claim.

As an initial matter, we note that, contrary to the requirements of Practice Book § 64-1, the defendant has failed to provide this court with a record that contains a memorandum of decision by the trial court or a signed transcript of an oral decision. “It is the responsibility of the appellant to provide this court with an adequate record for review. See Practice Book § 61-10.” Wells Fargo Bank of Minnesota, N.A. v. Morgan, 105 Conn. App. 856, 860, 941 A.2d 943 (2008). “When the record does not contain either a memorandum of decision or a transcribed copy of an oral decision signed by the trial court stating the reasons for its decision, this court frequently has declined to review the claims on appeal because the appellant has failed to provide the court with an adequate record for review.” (Internal quotation marks omitted.) In re Diamond J., 121 Conn. App. 392, 398-99, 996 A.2d 296, cert. denied, 297 Conn. 927, 998 A.2d 1193 (2010). Moreover, “[t]he requirements of Practice Book § 64-1 are not met by simply filing with the appellate clerk a transcript of the entire trial court proceedings.” Mikolinski v. Commissioner of Motor Vehicles, 55 Conn. App. 691, 695, 740 A.2d 885 (1999), cert. denied, 252 Conn. 922,747 A.2d 518 (2000); see also Auric Answering Service, Inc. v. Glenayre Electronics, Inc., 54 Conn. App. 86, 88, 733 A.2d 307 (holding that requirements of Practice Book § 64-1 not satisfied where trial court signed transcript of entire proceeding), cert. denied, 250 Conn. 926, 738 A.2d 653 (1999). Despite an appellant’s failure to satisfy the requirements of Practice Book § 64-1, this court has, “on occasion, reviewed claims of error in light of an unsigned transcript as long as the transcript contains a sufficiently detailed and concise statement of the trial court’s findings.” Bank of America, FSB v. Franco, 57 Conn. App. 688, 691 n.1, 751 A.2d 394 (2000).

In the present case, the record does not contain a memorandum of decision or a signed transcript of the court’s oral decision. The record does, however, contain an unsigned transcript of both the May 21, 2008 hearing on the judgment of dissolution, as well as the March 27, 2009 hearing on the motion to enjoin. Based on our review of the unsigned transcripts, we are able to locate the portions of the record that constitute the court’s orders. Thus, the defendant’s failure to comply with the requirements of Practice Book § 64-1 does not hamper our ability to review her claim. See, e.g., State v. Payne, 121 Conn. App. 308, 312, 996 A.2d 302, cert. denied, 297 Conn. 919, 996 A.2d 1193 (2010).

Turning to the merits of the defendant’s first claim, we conclude that the court’s March 27, 2009 order constituted an improper postjudgment modification of the court’s property assignment pursuant to the May 21, 2008 judgment of dissolution. “[C]ourts have no inherent power to transfer property from one spouse to another; instead, that power must rest upon an enabling statute. . . . The court’s authority to transfer property appurtenant to a dissolution proceeding rests on [General Statutes] § 46b-81. . . . Accordingly, the court’s authority to divide the personal property of the parties, pursuant to § 46b-81, must be exercised, if at all, at the time that it renders judgment dissolving the marriage.” (Internal quotation marks omitted.) Roos v. Roos, 84 Conn. App. 415, 422, 853 A.2d 642, cert. denied, 271 Conn. 936, 861 A.2d 510 (2004). General Statutes § 46b-86 (a) “deprives the Superior Court of continuing jurisdiction over that portion of a dissolution judgment providing for the assignment of property of one party to the other party under ... § 46b-81.” Bunche v. Bunche, 180 Conn. 285, 289, 429 A.2d 874 (1980). “A court, therefore, does not have the authority to modify the division of property once the dissolution becomes final. . . . Although the court does not have the authority to modify a property assignment, a court . . . does have the authority to issue postjudgment orders effectuating its judgment.” (Citation omitted.) Roos v. Roos, supra, 422.

In order to resolve the defendant’s claim, we must therefore determine whether the court’s March 27,2009 order regarding the QDRO modified or merely effectuated the property distribution provided by the May 21, 2008 judgment of dissolution. “A modification is [a] change; an alteration or amendment which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject-matter intact. . . . [W]hen determining whether the new order is a modification, we examine the practical effect of the ruling on the original order.” (Citation omitted; internal quotation marks omitted.) Santoro v. Santoro, 70 Conn. App. 212, 217, 797 A.2d 592 (2002).

In order to determine the practical effect of the court’s order on the original judgment, we must examine the terms of the original judgment as well as the subsequent order. “[T]he construction of [an order or] judgment is a question of law for the court . . . [and] our review ... is plenary. As a general rule, [orders and] judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the [order or] judgment. . . . The interpretation of [an order or] judgment may involve the circumstances surrounding [its] making .... Effect must be given to that which is clearly implied as well as to that which is expressed. . . . The [order or] judgment should admit of a consistent construction as a whole.” (Internal quotation marks omitted.) State v. Denya, 294 Conn. 516, 529, 986 A.2d 260 (2010).

In the present case, there is no written order or judgment, and we must construe the court’s oral order and judgment as memorialized in the unsigned transcripts. At the dissolution hearing, after assigning the QDRO to the plaintiff, the court stated: “It is the court’s finding that between both of the parties it is understood that there should be, absent fluctuations, approximately $734,000 in [the] QDRO.” We construe the terms “absent fluctuations” and “approximately” as indicating that the court was not awarding the plaintiff a sum certain of $734,000. Rather, this language plainly indicates that the court was awarding the plaintiff the QDRO, with whatever amount it may contain, and not a fixed sum. The statement regarding the $734,000 merely reflects the court’s understanding of the amount that the QDRO contained at that time, and when read in context, does not indicate that the court was awarding the plaintiff that exact sum. At the conclusion of the March 27, 2009 hearing on the motion to enjoin, however, the court ordered that the plaintiff was to receive a sum certain of $734,000 and that after the defendant transferred the QDRO, any deficiency between the amount in the QDRO and the sum of $734,000 should be paid by the defendant through the sale of assets. Therefore, by ordering that the defendant sell assets to pay any deficiency between the amount in the QDRO and the sum of $734,000, the second order had the practical effect of altering the original property distribution from an award of the QDRO to an award of a fixed sum to be paid out of the funds in the QDRO as well as the sale of assets.

We conclude that the court’s March 27, 2009 order went beyond merely effectuating the original distribution of the marital property and instead altered the terms of the original order. To the extent that the court’s March 27, 2009 order altered the terms of the original May 21, 2008judgment, it constituted an improper post-judgment modification of the original distribution of the marital property and, thus, cannot stand.

The judgment is reversed only as to that portion of the court’s order that the plaintiff is entitled to a sum certain of $734,000 and that the defendant pay any deficiency between the amount in the QDRO and the amount of $734,000. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Practice Book § 64-1 (a) provides in relevant part: “The court shall state its decision either orally or in writing ... in rendering judgments in trials to the court in civil and criminal matters . . . and ... in making any other rulings that constitute a final judgment for purposes of appeal .... The court’s decision shall encompass its conclusion as to each claim of law raised by the parties and the factual basis therefor. If oral, the decision shall be recorded by a court reporter and, if there is an appeal, the trial court shall create a memorandum of decision for use in the appeal by ordering a transcript of the portion of the proceedings in which it stated its oral decision. The transcript of the decision shall be signed by the trial judge and filed in the trial court clerk’s office. ...”

       It appears that the defendant did request that the court sign the transcript of its oral decision of March 27, 2009, but the court did not comply with that request. In the event that the trial court fails to comply with the requirements of Practice Book § 64-1 (a), it is incumbent on the appellant to follow the procedure set forth in Practice Book § 64-1 (b) to ensure an adequate record for review. Pursuant to § 64^1 (b), “[i]f the trial judge fails to file a memorandum of decision or sign a transcript of the oral decision . . . the appellant may file with the appellate clerk a notice that the decision has not been filed in compliance with subsection (a). . . .”

       General Statutes § 46b-86 (a) provides in relevant part: “Unless and to the extent that the decree precludes modification . . . [any] order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court .... This section shall not apply to [property] assignments under section 46b-81 . . . .”

       The parties do not contest the fact that the pension plan assigned pursuant to the QDRO was property to which § 46b-81 applies. See, e.g., Cifaldi v. Cifaldi, 118 Conn. App. 325, 331, 983 A.2d 293 (2009) (“[o]ur Supreme Court has held that property as used in § 46b-81, includes the right, contractual in nature, to receive vested pension benefits in the future” [internal quotation marks omitted]).