author: Freedman, J. Landau, J.,

text:
    Doreen Morelli v. Manpower, Inc.
    (11042)
    Landau, Freedman and Schaller, Js.
    Argued November 3, 1993
    decision released May 17, 1994

      William F. Gallagher, with whom was Snow Gene Munford, for the appellant (plaintiff).

      Richard A. Roberts, with whom, on the brief, was Michelle J. Blair, law student intern, for the appellee (named defendant).

      Glory Martyn Lena, with whom, on the brief, was William H. Champlinlll, for the appellee (defendant Sears, Roebuck and Company).
   Freedman, J.

This matter is currently before us on remand from our Supreme Court. Morelli v. Manpower, Inc., 226 Conn. 831, 628 A.2d 1311 (1993). When this matter was first before us we dismissed the appeal, on our own motion, on the ground that the denial of a motion to open a dismissal entered pursuant to Practice Book § 251 was not a final judgment, relying on Governors Grove Condominium Assn., Inc. v. Hill Development Corp., 187 Conn. 509, 446 A.2d 1082 (1982). Upon the granting of certification, the Supreme Court overruled Governors Grove, reversed our decision, and concluded that the denial of a motion to open a dismissal entered pursuant to Practice Book § 251 was an appealable final judgment.

The facts necessary to the resolution of this appeal were well stated in our previous decision as follows. “The plaintiff brought this negligence action against the defendant on August 23,1989. The plaintiff claimed that she was injured due to the negligence of a fellow employee while she was employed at Sears, Roebuck and Company. A motion to implead by the defendant, Manpower, Inc., was granted and a third party complaint against Sears, claiming breach of contract and indemnification, was filed. On April 17,1991, the case appeared on the Superior Court dormancy calendar, with a notice that the action would be dismissed on June 28, 1991, if counsel failed to close the pleadings or appear on that date. On June 10, 1991, the plaintiff filed a motion to exempt the action from the dormancy calendar. On June 28, 1991, the action was dismissed pursuant to Practice Book § 251 for the failure of the plaintiff to prosecute with reasonable diligence. Subsequently, the plaintiff filed a motion to open the judgment of dismissal, which was denied. This appeal is from that denial.” Morelli v. Manpower, Inc., 29 Conn. App. 132, 133, 612 A.2d 818 (1992). We went on to say in a footnote that “[t]he plaintiff claimed that she did not receive notice of the June 28, 1991 dismissal until November 19, 1991. The plaintiffs counsel claimed that he became aware of the judgment of dismissal during a discussion with the defendant’s counsel regarding a pending motion for summary judgment dated July 2, 1991, which was scheduled for hearing on the short calendar of November 25,1991. The plaintiff filed a motion to open the judgment on November 21,1991. A hearing on the plaintiff’s motion to open was scheduled for December 2, 1991, but it was not acted upon on that date. A computer generated notice, dated December 18, 1991, referring to a judgment dated December 5, 1991, was issued by the Superior Court clerk’s office and stated that the plaintiff’s motion to open the judgment was granted. Thereafter, the motion to open appeared on the December 9,1991 calendar and the trial court, A. Aronson, J., denied the motion to open. Notice of this decision was issued on December 9, 1991.

“The denial was based on Serrano v. Behar, 15 Conn. App. 308, 544 A.2d 250 (1988), which held that a trial court has no jurisdiction to open a judgment beyond the four month period described in General Statutes § 52-212a and Practice Book § 326. See also Van Mecklenburg v. Pan American World Airways, Inc., 196 Conn. 517, 494 A.2d 549 (1985).

“On January 10,1992, the trial court issued a notice that stated that ‘[conflicting notices were sent on this motion. Motion to reopen denied 12/9/91 per Aronson, J. . . . Notice granting motion sent in error. This file is dead.’ ” Morelli v. Manpower, Inc., supra, 29 Conn. App. 133-34 n.2.

The plaintiff claims that the trial court improperly denied her motion to open the judgment of dismissal on the ground that the court had no jurisdiction to open a judgment beyond the four month period described in General Statutes § 52-212a and Practice Book § 326 without first affording her a hearing on her claim that she did not receive notice of the judgment of dismissal until November 19, 1991. We agree.

Submitted along with her motion to open the judgment of dismissal dated November 21, 1991, was an affidavit of the plaintiff’s attorney. The affidavit alleged that the attorney for the plaintiff did not receive notice of the dismissal until he was informed of the dismissal by the attorney for Manpower, Inc., during a telephone conversation on November 19,1991. The conversation was in regard to a motion for summary judgment filed by Manpower, Inc., on July 9,1991, and scheduled for a hearing on November 25, 1991.

General Statutes § 52-212a provides in pertinent part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . -”

“[I]t is axiomatic that the right to move to open and vacate a judgment assumes that the party who is to exercise the right be given the opportunity to know that there is a judgment to open.” Noethe v. Noethe, 18 Conn. App. 589, 595, 559 A.2d 1149 (1989). The order of the trial court dated December 9,1991, denying the plaintiff’s motion to open the dismissal contains the following notation: “JDNO 12-9-91 KP A/C.” This is a standard notation used to indicate that a judicial notice of a decision or order has been sent by the clerk’s office to all parties of record. Such a notation raises a presumption that notice was sent and received in the absence of a finding to the contrary. Batory v. Bajor, 22 Conn. App. 4, 8, 575 A.2d 1042, cert. denied, 215 Conn. 812, 576 A.2d 541 (1990); DiSimone v. Vitello, 6 Conn. App. 390, 393, 505 A.2d 745 (1986). Because the presumption is rebuttable, it follows that the plaintiff is entitled to a hearing to have an opportunity to present such rebuttal evidence. When the trial court is required to make a finding that “depends on issues of fact which are disputed, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” (Internal quotation marks omitted.) Roberts v. Roberts, 32 Conn. App. 465, 475, 629 A.2d 1160 (1993).

The defendant Manpower urges us to find that, even if the plaintiff did not receive notice of the June 28, 1991 dismissal, she was on notice that the matter was on the dormancy calendar and the calendar itself contained a notation that if certain steps were not taken, the matter would be dismissed. This is an issue more properly reserved for the trial court at a hearing to determine when the plaintiff had notice of the dismissal and, accordingly, when the four month limitation, of General Statutes § 52-212a and Practice Book § 326 expired.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion Schaller, J., concurred.

Landau, J.,

concurring. Although I concur in the result reached by the majority, I disagree with its reasoning.

Before proceeding, it is important to point out exactly what is and what is not at issue. This is an appeal from the judgment of the trial court (albeit the second visit to this court) denying a motion to open a judgment of dismissal pursuant to Practice Book § 251 for failure of the plaintiff to prosecute her claim with reasonable diligence. The action was dismissed on June 28,1991. On November 21, 1991, more than four months after the dismissal, the plaintiff filed a motion to open, claiming, inter alia, that she did not receive notice of the dismissal until November 19, 1991. The plaintiff’s motion was denied by the trial court citing Serrano v. Behar, 15 Conn. App. 308, 311, 544 A.2d 250 (1988), stating that “a trial court has no jurisdiction to open a judgment beyond the four month period described in General Statutes § 52-212a and Practice Book § 326. See also Van Mecklenburg v. Pan American World Airways, Inc., 196 Conn. 517, 494 A.2d 549 (1985).”

The majority, disagreeing with the trial court, concluded that “ ‘[i]t is axiomatic that the right to move to open and vacate a judgment assumes that the party who is to exercise the right be given the opportunity to know that there is a judgment to open.’ Noethe v. Noethe, 18 Conn. App. 589, 595, 559 A.2d 1149 (1989).” It ruled that the plaintiff is entitled to a hearing to have an opportunity to present evidence rebutting the trial court’s finding that notice of the dismissal was sent by the court and received by the plaintiff. The majority, quoting Roberts v. Roberts, 32 Conn. App. 465, 475, 629 A.2d 1160 (1993), states: “When the trial court is required to make a finding that depends on issues of fact which are disputed, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” (Internal quotation marks omitted.) The majority’s adherence to Roberts as the linchpin of its analysis suggests a precedent based on a discretionary finding of fact, i.e., that the presumption of issuance and receipt of the notice has been met and overcome. I am apprehensive and distrustful of that reliance, and the precedential value that necessarily follows it.

The order of the trial court dated December 9,1991, coupled with the affidavit of the plaintiffs attorney, successfully fashions the notice issue. The bar to reaching a decision is General Statutes § 52-212a and Practice Book § 326. Both set out a temporal parameter of four months for the filing of a motion to open or set aside succeeding the date on which a judgment was rendered or passed, “[ujnless otherwise provided by law.” Due process is “provided by law” in any circumstance. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950). A dismissal under Practice Book § 251 certainly has a sense of finality attached, and “the existence of actual or constructive notice is a question of fact properly within the province of the trial court. Middlebury v. Steinmann, 189 Conn. 710, 714, 458 A.2d 393 (1983); Mausch v. Hartford, 184 Conn. 467, 469, 440 A.2d 157 (1981).” Noethe v. Noethe, supra, 18 Conn. App. 596. On remand, the trial court must hold an evidentiary hearing to determine when the plaintiff received either actual or constructive notice and whether she filed her motion to open within four months succeeding the date on which the judgment was rendered or passed. Id. Thus, rather than base a decision on Roberts with its substructure of a discretionary finding of fact, I would posit that Mullane serves as sounder footing on which to set the cornerstone.

I would direct the trial court, upon a finding that the plaintiffs motion to open was untimely, to deny the motion; if however, the court concludes that the motion was timely filed, then it must reach the merits of the motion.

Accordingly, I concur only in the result.

       Practice Book § 326 provides in pertinent part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed. The parties may waive the provisions of this paragraph or otherwise submit to the jurisdiction of the court. ...”

       We note that the defendant Manpower filed a motion for summary judgment on July 19, 1991, some ten days after the June 28, 1991, dismissal.

       The plaintiff moved the court “to reopen dismissal.” “Although the nomenclature is found in the title to General Statutes § 52-212 and in some decisions of our courts; see, e.g., Bartlett v. Bartlett, 220 Conn. 372, 599 A.2d 14 (1991); Sasso v. Aleshin, 197 Conn. 87, 495 A.2d 1066 (1985);D’Occhio v. Connecticut Real Estate Commission, 189 Conn. 162, 455 A.2d 833 (1983); Northeast Savings, F.A. v. Hopkins, 22 Conn. App. 396, 578 A.2d 136 (1990); Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 478 A.2d 257 (1984); unless the judgment has been opened previously, the appropriate appellation is a motion to open. ‘Reopen’ is defined in Webster’s Third New World Dictionary as ‘to open again’ or ‘to take up again.’ (Emphasis added.) Thus, we will treat the motion as a motion to open.” National Iron Bank v. Gelormino, 28 Conn. App. 7, 8 n.1, 609 A.2d 666 (1992).

       General Statutes § 52-212a provides: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. The parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court.”

       Practice Book § 326 provides: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside as filed within four months succeeding the date on which it was rendered or passed. The parties may waive the provisions of this paragraph or otherwise submit to the jurisdiction of the court.
      “Upon the filing of a motion to open or set aside a civil judgment, except a judgment in a small claims or juvenile matter, the moving party shall pay to the clerk the filing fee prescribed by statute unless such fee has been waived by the court.”

       Practice Book § 251 provides: “If a party shall fail to prosecute an action with reasonable diligence, the court may, after hearing, on motion by any party to the action pursuant to Sec. 196, or on its own motion, render a judgment dismissing the action with costs. At least two weeks’ notice shall be required except in cases appearing on an assignment list for final adjudication. Judgment files shall not be drawn except where an appeal is taken or where any party so requests.
      “If a case is printed on a dormancy calendar pursuant to the dormancy program administered under the direction of the chief court administrator, and a motion for default for failure to plead is filed pursuant to Sec. 128, only those papers which close the pleadings by joining issues, or raise a special defense, may be filed by any party, unless the court otherwise orders.”

       As a corollary to its argument, the defendant Manpower urges us to find that “even if the plaintiff did not receive notice of the June 28, 1991 dismissal, she was on notice that the matter was to be heard on the dormancy calendar which contained a notation that if certain steps were not taken, the matter would be dismissed.” The majority reached the conclusion that the issue before this court, i.e., whether the trial court was appropriate in its action denying the motion to open the judgment of dismissal, could not be addressed because findings of fact were necessary. It then embarks on a brief discussion by way of obiter dicta as to when the four month limitation, contained in General Statutes § 52-212a and Practice Book § 326, expires. While I agree with the majority that the argument is more properly reserved, on remand, for the trial court, the issue of the limitation’s expiration is not before us and is a matter best left to another day.


source: Caselaw Access Project

author: Lavery, J.

license: Public Domain

text:
    State of Connecticut v. Sadettin Zoravali
    (11766)
    Lavery, Landau and Schaller, Js.
    Argued January 6
    decision released May 17, 1994

      Susan M. Hankins, assistant public defender, for the appellant (defendant).

      Nancy L. Gillespie, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary W. Nicholson, assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant appeals from the judgment of conviction of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A) and risk of injury to a child in violation of General Statutes § 53-21. The defendant claims that the trial court improperly (1) limited the scope of cross-examination and denied the defendant’s request to make an offer of proof, (2) admitted overly prejudicial evidence of uncharged misconduct and failed to instruct the jury properly about its use, (3) admitted cumulative constancy of accusation evidence, and (4) permitted the state to reopen its case to establish the identity of the accused. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant, a friend of the victim’s mother, frequently visited the victim’s home and occasionally baby-sat for the eight year old female victim. On at least one occasion, the defendant fondled the victim’s genitalia. After the victim reported this abuse to her parents, her stepmother and certain professionals, the defendant was arrested, tried and convicted.

I

The defendant's first claim involves the testimony of the victim’s father. Prior to trial, the witness revealed that he had been convicted of third degree larceny in 1976 and had committed other types of misconduct in the midl970s. He was fired from his position as probationary patrolman for the Bridgeport police department for this misconduct. After an in camera review of the witness’ police department personnel records, the trial court excluded this evidence as too remote.

After the witness had been cross-examined, the state discovered that he had been convicted of second degree larceny twice in 1980, carrying a gun without a permit in 1983 and first degree larceny in 1985. These convictions were not uncovered earlier because the state had searched under an incorrect date of birth. The defendant cross-examined the witness about these newly discovered convictions. The defendant was not permitted, however, to inquire whether the witness had concealed his record from the state. The trial court also denied the defendant’s request to make an offer of proof regarding that possible misrepresentation.

A

The defendant claims that the trial court abused its discretion by excluding evidence of the witness’ conviction and other misconduct in the 1970s. He claims that this exclusion violated his right to confront the witnesses against him, as guaranteed by the sixth amendment to the United States constitution. Although the defendant correctly recites his right, the right is not absolute. State v. Warren, 14 Conn. App. 688, 697, 544 A.2d 209, cert. denied, 209 Conn. 805, 548 A.2d 442 (1988), cert. denied, 488 U.S. 1030, 109 S. Ct. 839, 102 L. Ed. 2d 971 (1989). “The confrontation clause of the sixth amendment requires that the defendant be accorded some irreducible minimum of cross-examination into matters affecting the reliability and credibility of the state’s witnesses. ... We must first determine whether the defendant was allowed the minimum cross-examination so as to expose to the jury the facts from which the jurors, as the sole triers of facts and credibility, [can] appropriately draw inferences relating to the reliability of the [state’s] witness. . . .” (Citations omitted; internal quotation marks omitted.) State v. Colon, 28 Conn. App. 231, 235, 611 A.2d 902, cert. denied, 223 Conn. 922, 614 A.2d 827 (1992).

In this case, the defendant cross-examined the witness regarding his four most recent convictions. Thus, the defendant exposed facts from which the jury could appropriately draw inferences about the witness’ credibility. In so doing, the sixth amendment was satisfied. See State v. Warren, supra, 14 Conn. App. 698. “The sixth amendment guarantee of the right of cross-examination does not include all evidence that is the least bit probative of credibility . . . .” (Internal quotation marks omitted.) State v. Couture, 218 Conn. 309, 321, 589 A.2d 343 (1991).

“Once it is established that the trial court’s ruling on the scope of cross-examination is not constitutionally defective, this court will apply [e]very reasonable presumption ... in favor of the correctness of the [trial] court’s ruling.... To establish an abuse of discretion, [the defendant] must show that the restrictions imposed upon [the] cross-examination were clearly prejudicial.” (Citations omitted; internal quotation marks omitted.) State v. Kwaak, 21 Conn. App. 138, 154, 572 A.2d 1015, cert. denied, 215 Conn. 811, 576 A.2d 540 (1990).

Here, the trial court’s exclusion of the witness’ earliest misconduct did not prejudice the defendant. As noted above, the defendant cross-examined the witness about his four most recent convictions thereby putting the witness’ credibility before the jury. Further, the excluded incidents were over fifteen years old, well outside the ten year period used as a rough benchmark for remoteness. State v. Nardini, 187 Conn. 513, 526, 447 A.2d 396 (1982). Finally, the excluded conviction was so similar to those included that the jury would not have been exposed to facts from which they could draw different inferences about the witness’ credibility. Therefore, the defendant has not demonstrated clear prejudice. See State v. Kwaak, supra, 21 Conn. App. 154.

B

The defendant also claims that the trial court abused its discretion by denying his request to make an offer of proof regarding the witness’ possible misrepresentation of his record to the state’s attorney. The defendant sought to inquire whether the witness had lied to the state’s attorney, hoping to expose to the jurors a recent example of the witness’ alleged duplicity. After the state’s attorney stated that he believed the witness had not lied to him, the trial court refused the defendant’s offer of proof as inviting impeachment on a collateral matter.

The trial court improperly denied the defendant’s request to make an offer of proof. “An offer of proof, properly presented, serves three purposes. First, it should inform the court of the legal theory under which the offered evidence is admissible. Second, it should inform the trial judge of the specific nature of the offered evidence so the court can judge its admissibility. Third, it thereby creates a record adequate for appellate review.” (Internal quotation marks omitted.) State v. Lussier, 7 Conn. App. 528, 531, 509 A.2d 81 (1986). The appellant bears the burden of providing an adequate appellate record through the offer of proof, among other vehicles. State v. Rios, 30 Conn. App. 712, 715, 622 A.2d 618 (1993) (noting rules of practice through which appellant ensures adequate record). A trial court cannot prevent a defendant from doing so. State v. Lussier, supra, 7 Conn. App. 532 (noting that trial court could not have prevented defendant from making offer of proof).

The trial court’s impropriety, however, was harmless. Absent a denial of fundamental fairness or violation of a specific constitutional right, a trial court’s evidentiary ruling is not constitutional in scope. State v. Vilalastra, 207 Conn. 35, 46, 540 A.2d 42 (1988). “When a trial error in a criminal case does not involve a constitutional violation the burden is on the defendant to demonstrate the harmfulness of the court’s error. . . . The defendant must show that it is more probable than not that the erroneous action of the court affected the result.” (Citation omitted; internal quotation marks omitted.) Id., 47.

The trial court’s denial of an offer of proof did not violate a specific constitutional right. Nor did the trial court’s ruling violate fundamental fairness because, as noted above, the defendant was afforded cross-examination sufficient to satisfy his sixth amendment right to confront the witnesses against him. Thus, to prevail, the defendant had to demonstrate that it was more probable than not that the judgment of the jury would have been influenced. State v. Carter, 228 Conn. 412, 428, 636 A.2d 821 (1994).

We conclude that the defendant has not shown that it is more probable than not that the jury’s verdict would have been different had he made the offer of proof. Assuming, arguendo, that the defendant had questioned the witness about the possible misrepresentation in front of the jury, we are not convinced that the jury would have drawn an even more unfavorable inference about the witness’ credibility than already established by his four convictions. Further, we do not think that it was more probable than not that the defendant would not have been convicted. Even had the witness’ credibility been destroyed, the jury could still have based its decision to convict on the testimony of the victim and the six other corroborating witnesses. The trial court’s impropriety permits remote speculation at best; it does not call into question the result of the trial.

II

The defendant’s next claim relates to evidence of three forms of misconduct that did not form the basis of any of the charged offenses. First, the victim testified that the defendant molested her while they sat in the public waiting room of a methadone clinic attended by the victim’s mother. Second, the victim testified that the defendant exposed himself to her and solicited oral sex. Third, the victim testified that the defendant digitally penetrated her cat and suggested that she might enjoy it if he did that to her.

A

The defendant claims that the trial court improperly admitted evidence of misconduct toward the cat. He asserts that its tendency to inflame the jury far outweighed its probative value. The trial court overruled his objection, finding that the evidence permitted an inference that the defendant had a sexual interest in the victim and was not overly prejudicial. We agree.

Evidence of a defendant’s prior misconduct is admissible provided (1) that it is relevant and material to intent, identity, malice, motive, a system of criminal activity or the elements of a crime and (2) that the probative value of the evidence outweighs its prejudicial effect. State v. Cooper, 227 Conn. 417, 424-25, 630 A.2d 1043 (1993). “The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court. . . . The problem is . . . one of balancing the actual relevancy of the other [misconduct] evidence in light of the issues and the other evidence available to the prosecution against the degree to which the jury will probably be roused by the evidence.” (Citations omitted; internal quotation marks omitted.) Id., 426-27. “Prejudice is not measured by the significance of the evidence which is relevant but by the impact of that which is extraneous. . . . All adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. C. Tait & J. LaPlante, [Connecticut Evidence] (Sup. 1992) pp. 87-88.” (Citation omitted; internal quotation marks omitted.) State v. Woodson, 227 Conn. 1, 17, 629 A.2d 386 (1993).

“The trial court’s discretionary determination that the probative value of evidence is not outweighed by its prejudicial effect will not be disturbed on appeal [absent] clear abuse of discretion .... We note that [b]ecause of the difficulties inherent in this balancing process . . . every reasonable presumption should be given in favor of the trial court’s ruling. . . .” (Citations omitted; internal quotation marks omitted.) Id.

We believe that, in context, the trial court did not abuse its discretion when it determined that the probative value of the evidence of the defendant’s misconduct toward the cat outweighed its prejudicial effect. The defendant’s act was of a sexual nature and directed toward the victim. As such, it permits an inference that the defendant had a sexual interest in her, which was relevant to the defendant’s motivation to commit the crime charged. Further, the prejudicial effect of the evidence was minimized by the trial court’s instructions to the jury limiting the purposes for which the evidence could be considered. Although prejudicial, the defendant has not persuaded us that the probative value of the evidence was outweighed by its prejudicial effect.

B

The defendant also claims that the trial court failed to instruct the jury adequately about the proper use of the evidence of all three incidents of uncharged misconduct. The defendant asserts that the charge did not limit the jury’s use of the evidence. Therefore, he argues that the charge was improper. We do not agree.

“When examining a trial court’s instructions to a jury, we do not engage in a microscopic examination of the charge, dissecting it line by line, nor do we consider the challenged portions of the charge in isolation. . . . We consider the instructions as a whole to determine whether there is a reasonable possibility that the jury was misled by the charge. . . . Jury instructions need not be exhaustive, perfect or technically accurate. . . . They must be correct in law, adapted to the issues presented in the case and sufficient to guide the jury in reaching a verdict. . . .’’(Citations omitted; internal quotation marks omitted.) State v. Ray, 30 Conn. App. 95, 107, 619 A.2d 469 (1993), rev’d on other grounds, 228 Conn. 147, 635 A.2d 777 (1994).

Considered in context, the charge was sufficient. The trial court instructed the jury that evidence of molestation at the methadone clinic could not be used to convict the defendant. Further, the court told the jury that the evidence could be used in two ways: as evidence of the victim’s credibility and the defendant’s intent to commit the crimes charged. The court later reiterated that the evidence of misconduct at the methadone clinic could not be used as substantive proof of any of the elements required to convict the defendant.

We believe that this charge was sufficient to guide the jury to a proper verdict. The court twice stated that the evidence could not be used as proof of any element of the crimes charged, and explained that the two permissible uses were credibility and intent. On the whole, we conclude that no reasonable possibility exists that the jury was misled.

The defendant also claims that the trial judge improperly failed to limit the jury’s use of evidence that he had exposed himself to the victim. The court explained, however, that the evidence of exposure could not be used substantively to prove that the defendant was guilty of any crime. The court further instructed that the evidence could be used for the other, nonsubstantive purposes that the court had explained earlier: intent and credibility. The court ended by restating that the evidence could not be used to convict the defendant of the crimes charged.

This instruction was sufficient. The court instructed the jury twice that the evidence could not be used in any substantive way to prove the defendant’s guilt. Thus, the jury was prohibited from using it to show predisposition or past conduct implying present guilt. Jury instructions need not be exhaustive: the court did not have to attempt to list every type of improper use imaginable under the rubric of substantive use for conviction. In this context, prohibiting the entire category was sufficient.

Finally, the defendant claims that the trial court failed to restrict adequately the jury’s use of the evidence of misconduct toward the cat. The trial court prohibited the jury from using the cat incident to prove any of the elements of the crimes charged. The court stated that the evidence could be used only to prove intent and “things of that nature.” This admittedly unspecific instruction followed the other two explicit instructions on use of evidence of uncharged misconduct. Thus, the jury already had heard twice that evidence that could not be used substantively, could be used for intent and credibility. In this instruction, the court prohibited substantive use and referred again to the permissible uses: intent and credibility. The phrase “things of that nature” cannot be presumed to refer to impermissible uses such as predisposition or past conduct implying present guilt. Such a use would be to prove the essential elements of the crime charged, a use explicitly prohibited in the previous sentence. Finally, impermissible uses are dissimilar to intent and credibility. Thus, impermissible uses would not be “things” in the nature of intent. Therefore, we conclude that these instructions were sufficient.

Ill

The defendant next claims that the trial court improperly admitted cumulative testimony under the constancy of accusation doctrine. The state was permitted to present seven witnesses who testified about the victim’s accusations. The trial court overruled the defendant’s motion to exclude some of these witnesses as cumulative.

The constancy of accusation doctrine permits witnesses to testify about what the victim of a sex-related offense told them. State v. Parris, 219 Conn. 283, 289-90, 592 A.2d 943 (1991); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.22.1. The doctrine admits testimony about the details of the assault as recounted to the witness by the victim. State v. Parris, supra, 290; C. Tait & J. LaPlante, supra, § 11.22.3. It is, in short, an exception to the hearsay rule. State v. Bailey, 32 Conn. App. 773, 779, 631 A.2d 333 (1993); C. Tait & J. LaPlante, supra, § 11.22.1.

“A trial court’s broad discretion to exclude evidence more prejudicially cumulative than probative certainly encompasses the power to limit the number of witnesses who may be called for a particular purpose. . . . In excluding evidence on the ground that it would only be cumulative, care must be taken not to exclude merely because of an overlap with the evidence previously received. To the extent that evidence presents new matter, it is obviously not cumulative with evidence previously received.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Parsons, 28 Conn. App. 91, 105-106, 612 A.2d 73, cert. denied, 223 Conn. 920, 614 A.2d 829 (1992).

The constancy of accusation testimony presented in this case was not cumulative. Although all of the testimony overlapped, in the sense that it arose from the same incident, all of the testimony pertained to different statements made by the victim to different people at different times. Rather than prejudicially cumulative, therefore, the evidence covered new matter by demonstrating that the victim had reported the abuse constantly and consistently. State v. Parris, supra, 219 Conn. 294; State v. Parsons, supra, 28 Conn. App. 106.

IV

Finally, the defendant claims that the trial court improperly permitted the state to reopen its case-in-chief to enter identity evidence. The defendant further claims that without reopening the state’s case, the defendant’s identity was not sufficiently proven to convict. We believe neither that the trial court abused its discretion nor that the evidence was insufficient to establish identity.

“ ‘[I]f a trial court feels that, by inadvertence or mistake, there has been a failure to introduce available evidence upon a material issue in the case of such a nature that in its absence there is a serious danger of a miscarriage of justice, it may properly permit that evidence to be introduced at any time before the case has been decided.’ ” Wood v. Bridgeport, 216 Conn. 604, 606, 583 A.2d 124 (1990), quoting Hauser v. Fairfield, 126 Conn. 240, 242, 10 A.2d 689 (1940). Thus, witnesses can be permitted to elaborate or to explain testimony already given. State v. Allen, 205 Conn. 370, 380, 533 A.2d 559 (1987), citing State v. Brigandi, 186 Conn. 521, 545-46, 442 A.2d 927 (1982).

The decision to reopen a criminal case to add further testimony lies within the sound discretion of the trial court. State v. Carter, supra, 228 Conn. 420. “The trial judge’s discretion, which is a legal discretion, should be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” (Internal quotation marks omitted.) Id., 421, quoting State v. McKnight, 191 Conn. 564, 576-77, 469 A.2d 397 (1983). The purpose of this discretion is “to preserve the fundamental integrity of the trial’s truth-finding function.” State v. Carter, supra, 426. The trial court’s discretion will be reversed only upon manifest abuse of discretion or injustice. Ostolaza v. Warden, 26 Conn. App. 758, 778, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992).

A trial court abuses its discretion by reopening the state’s case “when the state has failed to make out a prima facie case because insufficient evidence has been introduced concerning an essential element of a crime and the defendant has specifically identified this evidentiary gap in a motion for judgment of acquittal. . . .” State v. Allen, supra, 205 Conn. 385. The waiver rule prohibits appellate review of the sufficiency of the state’s prima facie case if the defendant presents evidence after the motion is denied. See State v. Booker, 28 Conn. App. 34, 41-42, 611 A.2d 878, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992), cert. denied, U.S. , 113 S. Ct. 1271, 122 L. Ed. 2d 666 (1993). Thus, when the state does not concede that it failed to establish a prima facie case and the defendant presented evidence, we must rely on the trial court’s determination. See id. If the trial court had ruled that a prima facie case had not been made, then reopening the state’s case would have been an abuse of discretion. State v. Allen, supra, 385. When, as in this case, the trial court has ruled that the state has established a prima facie case, the trial court’s decision to reopen was within its discretion. State v. Carter, supra, 228 Conn. 420.

We note, however, that we would reach the same result even if the waiver rule did not bar our review of the state’s prima facie case. The state had adduced sufficient evidence of identity to establish a prima facie case against the defendant before reopening its case. The victim identified the defendant in court when she testified that a man named Sammie, who was a busboy where her mother was a waitress, came to her birthday party, brought her a teddy bear and periodically babysat while her mother worked. The defendant met this description. The victim testified that Sammie had molested her.

In addition to the victim’s direct testimony, the victim’s father testified that the victim had told him that the defendant had molested her. Similar testimony was offered by several other constancy of accusation witnesses. Although this evidence cannot be used substantively, it does bolster the victim’s credibility and corroborate her testimony. State v. Bethea, 24 Conn. App. 13, 17-18, 585 A.2d 1235, cert. denied, 218 Conn. 901, 588 A.2d 1076 (1991).

Thus, even without further evidence, the state had established a prima facie case against the defendant. Therefore, the trial court’s decision to reopen the state’s case to add evidence inadvertently omitted was within the trial court’s discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-73a (a) provides in pertinent part: “A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age . . .

       General Statutes § 53-21 provides in pertinent part: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that ... its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       The victim was interviewed by detectives of the New Haven police department, a clinical social worker with Yale-New Haven Hospital, a pediatric nurse practitioner with the hospital, and two social workers with the department of children and youth services.

       The defendant was acquitted of sexual assault in the first degree, sexual assault in the fourth degree, and two accompanying risk of injury charges.

       Because the information alleged that all of the offenses had occurred at the victim’s house, this incident was treated as uncharged misconduct.

       This evidence formed the basis of one of the charges of risk of injury to a child. The trial court granted the defendant’s motion for judgment of acquittal, however, ruling that no evidence was presented that the defendant had touched the victim, as charged by the state. Thereafter, the incident was treated as uncharged misconduct.

       The instructions relating to misconduct at the methadone clinic were as follows: “Now, you will note that in the six remaining counts that the state alleges that the acts occurred at Clinton Avenue. Notice specifically at Clinton Avenue. Although there was some testimony that some conduct took place on Legion — the methadone clinic on Legion Avenue . . . you cannot convict [the defendant] for those activities for he is not charged with those activities.
      “The testimony involving Legion Avenue can be considered by you in two respects, it may be considered to such extent as it may bear on [the victim’s] credibility, whether it’s consistent or inconsistent with the story she told other people.
      “It may also be considered to aid you in determining whether [the defendant] exhibited a sexual interest in [the victim] bearing on his intent to commit the crimes charged in the information. [The defendant] is on trial only for those crimes charged as having been specifically committed at Clinton Avenue in New Haven. Remember that you are only to consider those crimes charged.
      * ** *
      “Again, I remind you that the state has specifically charged the defendant with the crime of a sexual assault in the first degree in the Clinton Avenue home and the conduct that you may find to have occurred at the methadone clinic on Legion Avenue could not be constituted to satisfy the proof required to establish any element of the crime alleged to have occurred at the Clinton Avenue home.
      “I tell you that for the limited purpose that that evidence may be used and for which you may consider it.”

       The instructions regarding evidence of exposure were as follows: “You will note that one of the elements of the crime of risk of injury requires that the defendant be proven beyond a reasonable doubt to have committed an act upon the person of the victim, that is, that it must have been an act perpetrated upon the person of [the victim] by the defendant, and the allegation was that he exposed himself and that he asked her to perform a certain act. There is no evidence that there was any act perpetrated upon her person, there was no touching of any sort, therefore, the evidence was not sufficient to sustain that charge and the court withdrew it from your consideration, so you understand that. And you may not use that evidence relating to that, those acts, as anything substantive to prove that the other acts occurred]. As I indicated, it may go to other areas of your consideration, but not to prove that these particular acts did, in fact, occur that he is specifically charged with.”

       The instructions relating to the evidence of misconduct toward the cat were as follows: “And, again, I call to mind the fact that withdrawn — I mean, withdrawn from your consideration is any evidence relating to the alleged assault on the cat, that did not constitute any touching of [the victim], so that is not evidence that can be considered for the purpose of proving the essential elements of this crime. It may be used for purposes of determining intent and things of that nature, however.”

       The defendant sought on appeal to have the doctrine overruled. This claim is not properly before us because the defendant withdrew his general objection to the constancy of accusation evidence. Practice Book § 4185. We note, however, that our Supreme Court recently reconfirmed that the constancy of accusation doctrine “is ‘rationally and socially adapted to ascertaining the truth State v. Parris, 219 Conn. 283, 292, 592 A.2d 943 (1991). “As an intermediate appellate court, we must follow the precedent of our Supreme Court along the path which our considered reading of that precedent lays out for us.” Burton v. Planning Commission, 13 Conn. App. 400, 409, 536 A.2d 995 (1988), aff'd, 209 Conn. 609, 553 A.2d 161 (1989). Thus, even if the claim was properly before us, the defendant would not prevail.

       Our Supreme Court did not discuss the waiver rule in Allen. See State v. Allen, supra, 205 Conn. 383. The rule was not implicated because, in Allen, the state conceded that it had failed to establish a prima facie case. Id. Because this issue was undisputed, no evaluation was required. See id.


text:
    Allstate Insurance Company v. Benjamin Lenda
    (11362)
    Foti, Landau and Freedman, Js.
    Argued December 1, 1993
    decision released May 24, 1994

      Stephen E. Goldman, with whom was Raymond T. DeMeo, for the appellant (plaintiff).

      Kathryn Calibey, for the appellee (defendant).
   Freedman, J.

The plaintiff, Allstate Insurance Company, appeals from the judgment of the trial court denying its application to vacate an arbitration award. The plaintiff claims that the trial court improperly confirmed the arbitration award because (1) it improperly stacked the applicable insurance policy benefits of the defendant, Benjamin Lenda, in determining that the tortfeasor’s vehicle was underinsured, (2) the defendant was no longer legally entitled to recover from the tortfeasor, (3) it failed to allow a reduction in the amount of underinsured motorist benefits awarded to the defendant by the full amount of the tortfeasor’s liability coverage paid by the tortfeasor’s insurer, and (4) it failed to order a setoff for collateral source recovery pursuant to General Statutes § 52-225a. We affirm in part and reverse in part.

The facts, as stipulated by the parties, are as follows. On May 24,1989, Lenda sustained personal injuries in a five car collision. He was operating his personal vehicle in the left westbound lane when an eastbound vehicle, operated by Peter Seymour, crossed the center line and struck Lenda’s vehicle head-on. The negligence and legal liability for the collision rested solely with Seymour. The only liability insurance available to Seymour was a combined single limit policy with Travelers Insuranee Company with coverage of $100,000. Seymour’s liability insurance has been exhausted for purposes of this underinsured motorist claim.

At the time of the accident, the vehicle operated by Lenda was insured with Allstate. The Allstate policy was in force and effect at the time of the accident. Lenda’s policy with Allstate provided $100,000 in uninsured or underinsured motorist coverage on each of two vehicles. Lenda was the named insured on this policy. Allstate has paid a total of $5000 in basic reparations benefits to or on behalf of Lenda, and is entitled to a credit or setoff in that amount.

Because the parties were unable to agree whether any underinsured motorist benefits were due Lenda, the trial court entered an order compelling arbitration of Lenda’s claim for underinsured motorist benefits. After a hearing, the arbitrators found that, in determining the potentially available underinsured motorist coverage, Lenda was entitled to stack the policy’s $100,000 in underinsured motorist coverage on both of his vehicles for a total coverage of $200,000. The arbitrators also found that Lenda’s damages exceeded the total underinsured coverage available. They did not specify, however, the exact amount of damages. In addition, the arbitrators found that Allstate was entitled to a credit of $73,071.51, the amount paid by Seymour to Lenda, pursuant to a stipulated judgment, for personal injuries, and a credit of $5000 for the reparations benefits paid to Lenda by Allstate. The arbitrators rejected Allstate’s claim that the stipulated judgment against Seymour constituted a bar to receiving under insured motorist benefits.

Allstate thereafter filed an application to vacate, correct or modify the award. Lenda sought to confirm the award. A hearing was held and the trial court concluded that the Seymour vehicle was underinsured and, therefore, the trial court denied Allstate’s application to vacate and granted Lenda’s motion to confirm. Allstate appealed to this court. Allstate subsequently filed a motion for articulation with the trial court. Pursuant to that motion, the trial court issued an articulation of its decision.

I

Allstate claims that the trial court improperly confirmed the arbitration award after improperly determining that the tortfeasor’s vehicle was underinsured. Specifically, Allstate claims that the arbitrators should not have stacked the underinsured motorist coverage for the two vehicles covered by Lenda’s policy. We disagree.

“In reviewing compulsory arbitration cases, this court must conduct a de novo review of the arbitrator’s interpretation and application of the law. . . .’’(Citations omittéd; internal quotation marks omitted.) Buell v. American Universal Ins. Co., 224 Conn. 766, 770, 621 A.2d 262 (1993).

We begin our analysis by examining General Statutes § 38a-336. “The application of § 38a-336 requires two distinct steps: (1) determining whether a vehicle is in fact underinsured, so that coverage is available; and (2) calculating the amount of the actual award due the victim.” Covenant Ins. Co. v. Coon, 220 Conn. 30, 36, 594 A.2d 977 (1991). “Thus, in making the initial determination whether a [tortfeasor’s] vehicle is underinsured, § 38a-336 clearly states that the aggregate of the liability limits under all of the tortfeasor’s policies are to be compared with the uninsured motorist coverage limit of the policy against which a claim is made. The statute unequivocally refers to the liability provisions in the plural but the uninsured motorist provisions in the singular. Consequently, the analysis directed by § 38a-336 requires a comparison between the aggregate of [the tortfeasor’s] liability limits available to the victim against the underinsured motorist limits in each single policy against which the victim has a claim.” (Emphasis in original.) Id., 35-36. In short, all liability policies applicable to the Seymour vehicle are to be measured against the uninsured motorist portion of the Lenda policy.

The question presented here is whether intrapolicy stacking is permitted in making the initial determination of whether a motor vehicle is underinsured. To answer this question, we must first examine three decisions of our Supreme Court, Nationwide Ins. Co. v. Gode, 187 Conn. 386, 446 A.2d 1059 (1982), Farm & City Ins. Co. v. Stevens, 215 Conn. 157, 574 A.2d 1300 (1990), and Covenant Ins. Co. v. Coon, supra, 220 Conn. 30. We conclude that, when read together, although these cases do not permit interpolicy stacking to determine whether a motor vehicle is underinsured, they do permit intrapolicy stacking in making such a determination.

In Gode, the court held that intrapolicy stacking was permitted in determining whether a motor vehicle is underinsured. Additionally, the court implied in dicta that, because the singular term policy in General Statutes § 38a-336, (then General Statutes [Rev. to 1989] § 38-175c) could also be interpreted as the plural policies, interpolicy stacking would also be permitted. Nationwide Ins. Co. v. Gode, supra, 187 Conn. 394-95. Later, in Stevens, the court rejected that interpretation and did not permit stacking of the uninsured motorist coverage on the claimant’s vehicles with the uninsured motorist coverage on the tortfeasor’s vehicle. Farm & City Ins. Co. v. Stevens, supra, 215 Conn. 161. The court, however, reaffirmed that portion of Gode that permitted intrapolicy stacking. Id.

Thereafter, in Coon, the court further construed the method by which it is determined whether a motor vehicle is underinsured. In Coon, the arbitrators stacked a policy issued to the claimant and one issued to the driver of the car in which the claimant was a passenger to determine whether the claimant’s vehicle was underinsured. Covenant Ins. Co. v. Coon, supra, 220 Conn. 35. The court held that, because the statute was not ambiguous, the word policy in General Statutes § 38a-336 could not be interpreted also to mean policies as stated in Gode. Id., 35-36. The court overruled Gode only to the extent that it may have permitted interpolicy stacking and specifically prohibited inter-policy stacking in the initial determination of coverage. Id., 36 n.6.

Here, unlike in Coon, Lenda’s one policy covered two vehicles. Reading Gode, Stevens, and Coon together, we conclude that in determining whether a motor vehicle is underinsured, intrapolicy stacking is permitted. Therefore, the trial court properly stacked Lenda’s uninsured motorist coverage under his multiple vehicle policy in determining that Seymour’s motor vehicle was underinsured. Here, Lenda’s policy covered two motor vehicles for $100,000 each in uninsured motorist coverage for a total of $200,000. The liability limit of Seymour’s policy was $100,000. Because Seymour’s liability limit is less than Lenda’s uninsured coverage, Seymour’s motor vehicle was underinsured.

II

Allstate next claims that the trial court improperly confirmed the arbitration award because the insured was not legally entitled to recover from Seymour after having entered into a stipulated judgment. We do not address this issue because Allstate failed to raise it before the trial court.

Allstate initially submitted this issue to arbitration. The arbitrators’ decision and award held that Lenda’s claim was not barred by the stipulated judgment between Seymour and Lenda. Allstate, however, did not raise this claim in the trial court. “Accordingly, we do not review this claim raised for the first time on appeal. Rydingsword v. Liberty Mutual Ins. Co., [224 Conn. 8, 9-10 n.1, 615 A.2d 1032 (1992)]; Cahill v. Board of Education, 187 Conn. 94, 99-100, 444 A.2d 907 (1982). ‘Only in the most exceptional circumstances will this court consider a claim that was not raised in the trial court. . . . Such exceptional circumstances may occur where a new and unforeseen constitutional right has arisen between the time of trial and appeal or where the record supports a claim that a litigant has been deprived of a fundamental constitutional right and a fair trial. . . . An exception may also be made where consideration of the question is in the interest of the public welfare or of justice between the parties.’. . . Cahill v. Board of Education, supra [99-100].” (Citations omitted.) D ’Addio v. Connecticut Ins. Guaranty Assn., 30 Conn. App. 729, 736, 622 A.2d 609 (1993). We conclude that these exceptions are not applicable in this case and, thus, we will not review this claim.

Ill

Allstate next claims that the trial court improperly confirmed the arbitration award because it failed to reduce the amount of underinsured motorist benefits awarded to Lenda by the full amount of the liability coverage paid by or on behalf of Seymour. We agree. Allstate claims that it is entitled to a reduction of the entire amount ($100,000) paid by Travelers Insurance Company on behalf of Seymour. This includes $73,071.51 paid to Lenda for personal injuries, $6987.45 paid to Lenda for property damage, $3300.15 paid to Patricia Fritsch for property damage, $3441.60 paid to James Hanrahan for property damage, $6458.06 paid to Susan Tharnish for property damage, and $6661.23 paid to Patricia Fritsch for personal injuries.

We begin our analysis by determining whether the terms of Lenda’s insurance policy permitted Allstate to reduce the amount owed to Lenda for underinsured motorist coverage by (1) payments made by or on behalf of Seymour to other persons injured in the accident, and (2) payments made for property damages to Lenda and to others involved in the accident.

“ ‘An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract and enforced in accordance with the real intent of the parties as expressed in the language employed in the policy/ Schultz v. Hartford Fire Ins. Co., 213 Conn. 696, 702, 569 A.2d 1131 (1990). The policy words must be accorded their natural and ordinary meaning. Kelly v. Figueiredo, 223 Conn. 31, 35, 610 A.2d 1296 (1992). Under well established rules of construction, any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy. Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 375, 593 A.2d 498 (1991). This rule of construction may be not applied, however, unless the policy terms are indeed ambiguous. Kelly v. Figueiredo, supra, 37. Moreover, the mere fact that the parties advance different interpretations of the language in question ‘ “does not necessitate a conclusion that the language is ambiguous.” ’Id.” Stephan v. Pennsylvania General Ins. Co., 224 Conn. 758, 763-64, 621 A.2d 258 (1993).

Here, the policy contains the following language: “We will pay those damages which an insured person is legally entitled to recover from the owner or operator of an uninsured auto because of bodily injury sustained by an insured person. . . . The coverage limit for: (1) ‘each person’ is the total of all damages arising out of bodily injury to one person in any one motor vehicle accident. . . . The limits of this coverage will be reduced by: (1) all amounts paid by the owner or operator of the uninsured auto or anyone else responsible. This includes all sums paid under the bodily injury liability coverage of this or any other policy.” The policy language limiting coverage states that “all amounts paid” will be used to reduce the limits of the coverage and specifies that “all amounts paid” “includes all sums paid under the bodily injury liability coverage . . . .” (Emphasis added.) The policy does not say that the limits of coverage will be reduced by sums paid only under the bodily injury liability coverage. Nor does it say sums paid only to the claimant. In fact, the word “includes,” when accorded its natural and ordinary meaning, suggests that there are other sums by which the limits of the coverage may be reduced. Additionally, the phrase “all amounts paid” is exceptionally broad and unrestricted regarding the types of damages that may be used to reduce the limits of the coverage. We hold, therefore, that under the terms of the policy, Allstate is entitled to reduce the amount of underinsured motorist benefits payable to Lenda by all the amounts paid by or on behalf of Seymour to all injured parties both for personal injury and for property damages.

Having determined that Lenda’s policy with Allstate provides for these reductions, we next must determine whether the reduction is allowed under § 38a-334-6 of the Regulations of Connecticut State Agencies.

“[W]e have held repeatedly that ‘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.’ (Emphasis added.) Allstate Ins. Co. v. Ferrante, 201 Conn. 478, 483, 518 A.2d 373 (1986); Dixon v. Empire Mutual Ins. Co., 189 Conn. 449, 452-53, 456 A.2d 335 (1983); Nationwide Ins. Co. v. Gode, [supra, 187 Conn. 398-99]; Safeco Ins. Co. v. Vetre, 174 Conn. 329, 332-33, 387 A.2d 539 (1978); Pecker v. Aetna Casualty & Surety Co., 171 Conn. 443, 448-51, 370 A.2d 1006 (1976).” Streitweiser v. Middlesex Mutual Assurance Co., supra, 219 Conn. 377-78.

Section 38a-334-6 of the regulations provides in pertinent part 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 . . . .” Lenda claims that the phrase “the injury” limits the amounts that may be used to reduce the limits of coverage to only those attributable to the claimant’s injury and not to the injury of others. In support, Lenda cites Stephan v. Pennsylvania General Ins. Co., supra, 224 Conn. 758, and Buell v. American Universal Ins. Co., supra, 224 Conn. 766. The language at issue in the policies in Stephan and in Buell was: Any amounts otherwise payable for damages under this coverage “shall be reduced by all sums: (1) Paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible. . . .” Our Supreme Court interpreted this language to limit the reduction only to the amounts paid for the claimant’s bodily injury. The court’s analysis turned on the phrase “the bodily injury.” The court reasoned that the use of the word “the” as opposed to “a,” “any” or “all” restricted the reduction of damages owed to the claimant to the claimant’s bodily injury, not to any other person’s bodily injuries. Stephan v. Pennsylvania General Ins. Co., supra, 764; Buell v. American Universal Ins. Co., supra, 770-71.

Contrary to Lenda’s assertion, the language of the regulation is not similar to the language in the policies in Stephan and Buell. Section 38a-334-6 specifies that a reduction may be taken “to the extent that damages have been . . . paid by or on behalf of any person responsible for the injury.” On the other hand, the policy language in Stephan and Buell specifies that a reduction may be taken for “all sums . . . [p]aid because of the bodily injury. . . .” In the regulation, the phrase “the injury” relates to the person who paid or on whose behalf damages have been paid. While in Stephan and Buell, the phrase “the bodily injury” relates to the purpose for which the damages were paid.

Lenda also claims that the limit of coverage should not be reduced by the amounts paid for property damages. The language in the regulation does not limit the type of damages for which there may be a reduction. Generally, damages are defined as “pecuniary compensation or indemnity, which may be recovered in the courts by any person who has suffered loss, detriment, or injury, whether to his person, property, or rights through the unlawful act or omission or negligence of another . . . .” Black’s Law Dictionary (6th Ed. 1990). From our review of the language of the regulation, we conclude that the “damages” for which there may be a reduction of limits are not limited to bodily injury. Therefore, under the language of the regulation, damages paid for property damages as well as damages paid for bodily injury may be deducted for the purpose of reducing limits of coverage.

Under the terms and provisions of Lenda’s insurance policy with Allstate, Allstate was entitled to reduce the amount owed to Lenda for underinsured motorist coverage by all amounts paid by or on behalf of Seymour to Lenda and to others for both bodily injury and property damages. The language of § 38a-334-6 of the Regulations of Connecticut State Agencies authorizes this type of policy provision.

IV

Allstate’s final claim is that the trial court improperly confirmed the arbitration award because it failed to order a setoff for collateral source recovery pursuant to General Statutes § 52-225a. Subsequent to the arbitration of this case and the trial court review, our Supreme Court decided Smith v. Safeco Ins. Co. of America, 225 Conn. 566, 624 A.2d 892 (1993), which is dispositive of this issue.

“A claimant is entitled to the full amount of his or her underinsured motorist coverage if, after the claimant’s recovery from the tortfeasor has been reduced by collateral source payments in accordance with § 52-225a, the claimant’s uncompensated personal and economic damages exceed the amount of the insurance coverage. A claimant’s recourse to his or her underinsured motorist coverage is, however, limited in amount to less than his or her full coverage if the amount of the award against the tortfeasor for personal and economic damages, reduced in accordance with § 52-225a, results in uncompensated damages that are less than the full amount of the underinsured insurance coverage. In other words, while § 52-225a does not authorize collateral source payments to be deducted from a claimant’s available underinsured motorist coverage, it does authorize such payments to enter into the calculation of the claimant’s compensable injuries and losses.” Smith v. Safeco Ins. Co. of America, supra, 225 Conn. 574.

Here, the arbitration panel did not specify the amount of Lenda’s damages; it only indicated that the amount exceeded the limits of the underinsured motorist coverage. Thus, this matter must be remanded to the arbitration panel for a determination of Lenda’s damages and a calculation of the final amount due Lenda consistent with this opinion.

The judgment is reversed as to the confirmation of the award with respect to the amount by which Allstate was allowed to reduce its underinsured motorist coverage, and the case is remanded with direction to render judgment modifying the arbitration award in part to allow a reduction by the full amount of liability coverage paid by or on behalf of Seymour to Lenda and to any other injured party both for bodily injury and property damage, and with further direction to remand the matter to the arbitration panel for a determination of the precise amount bf Lenda’s damages and a calculation of the final amount due to Lenda consistent with this opinion.

In this opinion, Foti, J., concurred.

Landau, J.,

dissenting. I respectfully dissent. The issue before us is not whether intrapolicy stacking is permitted in making the determination whether a motor vehicle is underinsured. Rather, the issue in this appeal is whether the failure of the arbitrators to conduct a factual inquiry into the reasonable expectations of the parties as it pertains to stacking renders the bald and unsupported conclusion that stacking was available deficient as a matter of law.

The majority begins its analysis by first examining General Statutes § 38a-336, the statute defining an underinsured motor vehicle, in accordance with the rule defined in Covenant Ins. Co. v. Coon, 220 Conn. 30, 35-36, 594 A.2d 977 (1991). It then frames the issue to be decided as “whether intrapolicy stacking is permitted in making the initial determination of whether a motor vehicle is underinsured.” It cites three Connecticut Supreme Court opinions concerning intrapolicy stacking, Nationwide Ins. Co. v. Gode, 187 Conn. 386, 446 A.2d 1059 (1982), Farm & City Ins. Co. v. Stevens, 215 Conn. 157, 574 A.2d 1300 (1990), and Covenant Ins. Co. v. Coon, supra, 30, and concludes “that when read together, although these cases do not permit interpolicy stacking to determine whether a motor vehicle is underinsured, they do permit intrapolicy stacking in making such a determination.”

The majority then states in footnote 6: “After the briefs of the appellant and the appellee were filed, but before the appellant’s reply brief was filed, our Supreme Court issued its opinion in Kent v. Middlesex Mutual Assurance Co., 226 Conn. 427, 627 A.2d 1319 (1993). In Kent, the defendant argued that the claimant could not reasonably have expected intrapolicy stacking. The Supreme Court conducted an inquiry into the reasonable expectations of the parties in light of the individual facts and circumstances surrounding the insurance coverage. Id., 434. The court held that because (1) ‘the named plaintiff signed the application for insurance immediately following the statement: “I understand and acknowledge that the limits of UNINSURED or UNDERINSURED MOTORIST COVERAGE are applicable ONCE per claim regardless of the number of vehicles or operators on the policy now or in the future” ’; id., 435; (2) the policy itself contained basically the same language as the application regarding uninsured and underinsured motorist coverage; id.; (3) in their testimony the plaintiffs professed no expectation of stacked coverage; id., 434; and (4) the plaintiffs ‘paid a single actuarially appropriate premium for underinsured motorist coverage on their own vehicles’; id.; the plaintiffs could not have had a reasonable expectation that their underinsured motorist coverage would be stacked. Here, neither party argued or presented any evidence to the arbitration panel regarding the reasonable expectations of Lenda as to the total amount of underinsured coverage. Nor was any such argument made to this court. Therefore, we need not address this issue. ” (Emphasis added.)

The question of whether stacking is available is a mixed question of law and fact. An arbitration panel must inquire whether the reasonable expectations of the parties were consistent with an aggregation of policy liabilities. It is a prerequisite inquiry necessary to the maintenance of an underinsured motorist coverage action involving stacking. In this case, the absence of such an inquiry makes the arbitrator’s ultimate conclusion — that stacking is available — deficient as a matter of law.

It is the very fact that there was no evidence presented to the arbitration panel regarding the reasonable expectations of the parties that forms the reason for my parting company with the majority. “The availability of stacking depends upon the reasonable expectations of the parties to the contract [of insurance].” Kent v. Middlesex Mutual Assurance Co., supra, 226 Conn. 427, 437. The Kent court continues, “As we have repeatedly held, whether an insured may aggregate the limits of liability for underinsured motorist coverage depends upon the reasonable expectations of the parties.” (Emphasis added.) Id., 438 n.14; see also Cur- ran v. Aetna Casualty & Surety Co., 222 Conn. 657, 669, 610 A.2d 1198 (1992); Chmielewski v. Aetna Casualty & Surely Co., 218 Conn. 646, 672, 591 A.2d 101 (1991); Middlesex Ins. Co. v. Quinn, 27 Conn. App. 573, 582-83, 609 A.2d 1008 (1992), aff'd, 225 Conn. 257, 622 A.2d 572 (1993); Broderick v. Ins. Co. of North America, 25 Conn. App. 673, 675, 596 A.2d 18 (1991). Persevering with the lesson, our Supreme Court held that “[bjecause there was substantial evidence to support the arbitrators’ determination that the plaintiffs could not have had a reasonable expectation of stacked coverage; Chmielewski v. Aetna Casualty & Surety Co., [supra, 660-61 n.15]; the trial court improperly granted the plaintiffs’ application to vacate the arbitration award.” Kent v. Middlesex Mutual Assurance Co., supra, 439.

In Kent, the court has irrefutably clarified that an intrapolicy stacking determination requires an inquiry into the reasonable expectations of the parties in light of the individual facts and circumstances. Id., 437-39. The Kent court conducted such an inquiry, and determined that the language of the policy excluding coverage combined with the single actuarially appropriate premium for underinsured motorist benefits created a reasonable expectation of the parties that there would not be intrapolicy stacking. Id., 437.

The majority argues that because Allstate did not argue or present any evidence to the arbitration panel regarding the reasonable expectations of the parties as to the total amount of the coverage, and because no such argument was made before this court, we need not address this issue. It is well settled that “[o]n appeal, the scope of review of ... a question [of law] is plenary . . . .” Carbone v. Vigliotti, 222 Conn. 216, 222, 610 A.2d 565 (1992). In conducting its review, this court is bound by the principle of stare decisis to adhere to precedent in deciding a legal issue. State v. Somer ville, 214 Conn. 378, 384-85, 572 A.2d 944 (1990). It is not new doctrine that a party cannot determine a legal issue merely by choosing to argue or not to argue. Kent explicitly bases the availability of stacking on evidence consistent with the reasonable expectations of the parties. If no proof has been made, then, as a matter of law, stacking is unavailable.

I would reverse the judgment of the trial court and remand the matter with the direction to render judgment vacating the arbitration award.

       “Stacking refers 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. Gode, 187 Conn. 386, 388 n.2, 446 A.2d 1059 (1982).” (Internal quotation marks omitted.) Covenant Ins. Co. v. Coon, 220 Conn. 30, 31 n.2, 594 A.2d 977 (1991).

       “We have often held that statutes and regulations that apply to uninsured motorist coverage equally apply to underinsured motorist coverage. Lumbermens Mutual Casualty Co. v. Huntley, 223 Conn. 22, 28 n.9, 610 A.2d 1292 (1992); General Accident Ins. Co. v. Wheeler, 221 Conn. 206, 210-11, 603 A.2d 385 (1992); Natiomvicle Ins. Co. v. Gode, supra, [187 Conn.] 399-400.” Buell v. American Universal Ins. Co., 224 Conn. 766, 769 n.1, 621 A.2d 262 (1993).

       The $100,000 was paid out as follows: $73,071.51 paid to Lenda for personal injuries, $6987.45 paid to Lenda for property damage, $3300.15 paid to Patricia Fritsch for property damage, $3441.60 paid to James Hanrahan for property damage, $6458.06 paid to Susan Tharnish for property damage, and $6661.23 paid to Patricia Fritsch for personal injuries.

       General Statutes § 38a-336 (d) (formerly [Rev. to 1989] § 38-175c) 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.”

       “Intra-policy stacking is the aggregation of the limits of liability for uninsured-motorist coverage of each car covered in one policy, whereas inter-policy stacking involves the aggregation of coverage under more than one policy.” (Internal quotation marks omitted.)Nationwide Ins. Co. v. Gode, 187 Conn. 386, 389 n.2, 446 A.2d 1059 (1982).

       After the briefs of the appellant and the appellee were filed, but before the appellant’s reply brief was filed, our Supreme Court issued its opinion in Kent v. Middlesex Mutual Assurance Co., 226 Conn. 427, 627 A.2d 1319 (1993). In Kent, the defendant argued that the claimant could not reasonably have expected intrapolicy stacking. The Supreme Court conducted an inquiry into the reasonable expectations of the parties in light of the individual facts and circumstances surrounding the insurance coverage. Id., 434. The court held that because (1) “the named plaintiff signed the application for insurance immediately following the statement: T understand and acknowledge that the limits of UNINSURED or UNDERINSURED MOTORIST COVERAGE are applicable ONCE per claim regardless of the number of vehicles or operators on the policy now or in the future’ id., 435; (2) the policy itself contained basically the same language as the application regarding uninsured and underinsured motorist coverage; id.; (3) in their testimony the plaintiffs professed no expectation of stacked coverage; id., 434; and (4) the plaintiffs “paid a single actuarially appropriate premium for underinsured motorist coverage on their own vehicles”; id.; the plaintiffs could not have had a reasonable expectation that their underinsured motorist coverage would be stacked. Here, neither party argued or presented any evidence to the arbitration panel regarding the reasonable expectations of Lenda as to the total amount of underinsured coverage. Nor was any such argument made to this court. Therefore, we need not address this issue.

       “Include” is defined as “to place, list, or rate as a part or component of a whole or of a larger group, class, or aggregate.” Webster’s Third New International Dictionary.

       Section 38a-334-6 of the Regulations of Connecticut State Agencies (formerly § 38-175a-6 [d]) provides: “LIMITS OP 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 section 14-112 of the general statutes, except that the policy may provide for the reduction of limits to the extent that damages have been
      “(1) paid by or on behalf of any person responsible for the injury,
      “(2) paid or are payable under any workers’ 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.”

       General Statutes § 52-225a provides in pertinent part: “(a) In any civil action, whether in tort or in contract, wherein the claimant seeks to recover damages resulting from (1) personal injury . . . and wherein liability is admitted or is determined by the trier of fact and damages are awarded to compensate the claimant, the court shall reduce the amount of such award which represents economic damages, as defined in subdivision (1) of subsection (a) of section 52-572h, by an amount equal to the total of amounts determined to have been paid under subsection (b) of this section less the total of amounts determined to have been paid under subsection (c) of this section, except that there shall be no reduction for (1) a collateral source for which a right of subrogation exists and (2) that amount of collateral sources equal to the reduction in the claimant’s economic damages attributable to his percentage of negligence pursuant to section 52-572h.
      “(b) Upon a finding of liability and an awarding of damages by the trier of fact and before the court enters judgment, the court shall receive evidence from the claimant and other appropriate persons concerning the total amount of collateral sources which have been paid for the benefit of the claimant as of the date the court enters judgment.
      “(c) The court shall receive evidence from the claimant and any other appropriate person concerning any amount which has been paid, contributed, or forfeited, as of the date the court enters judgment, by, or on behalf of, the claimant or members of his immediate family to secure his right to any collateral source benefit which he has received as a result of such injury or death.”

       The issue of interpolicy stacking is not presented to this court in this case and the majority’s pronouncement is of some concern to me in that such gratuitous statements often form the wadding for the cannons of the future. “What we cannot speak about we must pass over in silence.” Wittenstein, Ludwig, Tractatus Logico-Philosopicus (1922). “I have often regretted my speech, never my silence.” Pubilius Syrus, Maxim 1070 (First Century B.C.).

       “While General Statutes § 38-175c, the uninsured motorist statute, does not specifically address the issue of stacking coverage, we have repeatedly held that a fair reading of the statute discloses no prohibition against such aggregations. . . . The reason for this is the common sense notion that such a result falls within the reasonable expectations of the parties to the insurance contract. As one court has observed: Stacking is derived from the presumption that when the named insured purchases uninsured motorist coverage on more that 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. Travelers Ins. Co. v. Pac, 337 So. 2d 397, 398 (Fla. App. 1976). This is particularly true when each of the insured vehicles is separately described, the coverage granted under the policy is separately listed for each vehicle, and a separate premium is charged for the coverage afforded to each of the described vehicles. See also Tucker v. Government Employees Ins. Co., 288 So. 2d 238 (Fla. 1973). Safeco Ins. Co. v. Vetre, [174 Conn. 329, 334, 387 A.2d 539 (1978)]. Nationwide Ins. Co. v. Gode, supra, [187 Conn.] 395. Where two premiums are paid for two vehicles, whether in one policy or two, total coverage for the named insured is doubled since a person can reasonably expect double coverage when he pays double premiums. Yacobacci v. Allstate Ins. Co., [33 Conn. Sup. 229, 231, 372 A.2d 987 (1976)]. Nationwide Ins. Co. v. Gode, supra, 396.” (Citations omitted; internal quotation marks omitted.) Cohn v. Aetna Ins. Co., 213 Conn. 525, 529-30, 569 A.2d 541 (1990).

       It is synonymous that if the parties to a contract action failed to argue that consideration was not present, a court would still be required to find that the contractual legal elements were satisfied. “ ‘[I]t is the function of the courts to expound and apply governing principles of law.’ [State Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 717, 546 A.2d 830 (1988)].” Foti v. Richardson, 30 Conn. App. 463, 466, 620 A.2d 840 (1993).