text:
    IN RE MICHELLE G.

    (AC 18109)
    O’Connell, C. J., and Foti and Hennessy, Js.
    Argued October 27, 1998
    officially released March 9, 1999

      Duane Totten, for the appellant (applicant).

      James H. Howard, for the appellee (guardian).

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

   Opinion

HENNESSY, J.

The applicant appeals from the judgment rendered by the Superior Court for Juvenile Matters dismissing his application for reinstatement as guardian of the person of the minor child, Michelle G. The applicant claims that the Superior Court improperly found that it lacked jurisdiction to grant the relief requested because he is not a parent or former guardian of Michelle G. as required by General Statutes § 45a-611.

The following facts and procedural history are relevant to this appeal. The applicant and L were married prior to the time that L gave birth to Michelle G. on September 5, 1994. Michelle G. was hospitalized after her birth. The department of children and families placed Michelle G. with her maternal grandmother upon the child’s release from the hospital. Michelle G. never lived with her biological mother or the applicant.

On March 23, 1995, the Probate Court for the district of Manchester removed Michelle G.’s mother as guardian, finding that the mother had abandoned the child. During the same proceedings, the applicant consented to his removal as guardian. The Probate Court appointed the maternal grandmother guardian of Michelle.

The applicant thereafter applied to the Probate Court to reinstate him as guardian of Michelle G. pursuant to § 45a-611. On November 8, 1996, the Probate Court denied the applicant’s application because he had been excluded from paternity as a result of a DNA analysis. On December 5, 1996, the Probate Court also ordered that the previous order granting the applicant visitation be rescinded because he had been excluded from paternity.

On August 27, 1997, the applicant filed another application for reinstatement of his guardianship with the Probate Court. In addition, the applicant filed a motion to have the matter transferred to the Superior Court pursuant to General Statutes § 45a-623. That motion was granted. On January 29, 1998, after a hearing, the Superior Court dismissed the application for lack of jurisdiction. On February 18, 1998, the applicant appealed to this court.

The applicant claims that the Superior Court improperly dismissed his application for lack of jurisdiction because it concluded that the applicant was neither a parent nor a former guardian and, therefore, did not have standing to apply for reinstatement as a guardian under § 45a~611.

In determining that the applicant was not a parent or former guardian, the Superior Court relied solely on the findings of the Probate Court and representations made by counsel. Thus, the issue before us is whether it was proper for the Superior Court to rely solely on the Probate Court’s findings and on representations made by counsel to determine whether the applicant was a parent or a former guardian and, therefore, would have standing to apply for reinstatement as a guardian pursuant to § 45a-611.

Section 45a-611 allows any parent who has been removed as the guardian of the person of a minor, or any guardian, whose guardianship rights were previously removed, to apply for reinstatement as guardian of the person of a minor. Therefore, to have standing to apply for reinstatement pursuant to § 45a-611, the person applying must be either a parent or a former guardian.

“The question of standing implicates a court’s subject matter jurisdiction and, as such, may be raised at any time during the proceedings. . . . Housing Authority v. Local 1161, 1 Conn. App. 154, 157, 468 A.2d 1251, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984).” (Internal quotation marks omitted.) Weidenbacher v. Duclos, 234 Conn. 51, 54 n.4, 661 A.2d 988 (1995). “[T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time.” Daley v. Hartford, 215 Conn. 14, 27-28, 574 A.2d 194, cert. denied, 498 U.S. 982, 111 S. Ct. 513, 112 L. Ed. 2d 525 (1990).

We note, however, that “[w]hen issues of fact are necessary to the determination of a court’s jurisdiction, 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. . . . Unisys Corp. v. Dept. of Labor, 220 Conn. 689, 695-96, 600 A.2d 1019 (1991).” (Internal quotation marks omitted.) Weidenbacher v. Duclos, supra, 234 Conn. 54 n.5. In addition, “it is well settled that statements of counsel are not evidence. State v. Roman, 224 Conn. 63, 68, 616 A.2d 266 [1992], cert. denied, 507 U.S. 1039, 113 S. Ct. 1868, 123 L. Ed. 2d 488 [1993]; State v. Tillman, 220 Conn. 487, 496, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992).” State v. Sauris, 227 Conn. 389, 404, 631 A.2d 238 (1993).

The applicant claims that even if the results of the DNA test preclude him from being declared Michelle G.’s biological father, he remains her parent because, under Connecticut law, a validly married couple who have a child born to them during the marriage are deemed to be the parents and therefore the guardians of that child, and the subsequent removal of his guardianship does not result in the termination of his parental rights. Section 45a-611 (a) provides that “[a]ny parent who has been removed as the guar dian . . . of a minor, may apply . . . for reinstatement as the guardian . . . .” General Statutes § 45a-604 (3) defines “parent” as “a mother . . . or a ‘father’ as defined in subdivision (2) of this section . . . .” Section 45a-604 (2) defines father as “(A) a man who is a father under the law of this state; and (B) a man determined to be a father-under chapter 815y.”

The trial court relied solely on the findings of the Probate Court that the applicant was not the biological father of Michelle G. Specifically, the Superior Court stated that “[t]he Probate Court did make a finding and was undoubtedly persuaded by the results of the paternity test, which I certainly think rebut the presumption [that a child bom in the course of a legally valid marriage is the issue of that marriage]. Since the issue of guardianship derived only from his putative fatherhood . . . once it is established that he is not the father . . . there’s no legal basis to restore that guardianship.” There is nothing in the transcript from the proceedings indicating that the Superior Court held an evidentiary hearing relating to the applicant’s claim that he remains a father under the laws of the state.

In addition, the Superior Court and all parties agreed that the action before the court was not an appeal from the Probate Court’s November 8, 1996 denial of the applicant’s application for reinstatement as guardian. An appeal from the November 8,1996 decision was not timely, and the Superior Court and the parties were in agreement that what was before the court was a second application by the applicant for reinstatement of his guardianship rights. As such, the applicant was entitled to an independent hearing by the Superior Court to address the issues raised in the August 27,1997 application for reinstatement. The applicant should have the opportunity to contradict the propriety and the validity of the DNA test, if he so chooses.

The applicant next claims that he was clearly the guardian of Michelle G. from her birth on September 5, 1994, until he was removed as guardian by consent on March 23,1995. Section § 45a-611 (c) applies “to the reinstatement of any guardian of the person of a minor other than a parent.” Section 45a-604 (6) provides: “ ‘Guardian’ means one who has the authority and obligations of ‘guardianship’ defined in subdivision (5) of this section . . . .” Section 45a-604 (5) provides: “ ‘Guardianship’ means guardianship of the person of a minor, and includes: (A) The obligation of care and control; and (B) the authority to make major decisions affecting the minor’s welfare, including, but not limited to, consent determinations regarding marriage, enlistment in the armed forces and major medical, psychiatric or surgical treatment . . . .”

The Superior Court relied on the finding of the Probate Court to determine that, because the DNA analysis subsequently showed that the applicant was not the biological father of Michelle G., the applicant was not a former guardian. Specifically, the Superior Court stated, “I understand but the court apparently found that the only basis of his guardianship was that he was presumed to be the father of the child because the child was born during the course of a legal marriage and you take that away and there’s no basis for his guardianship, plus you have the fact that the child’s been with the grandmother [since birth].”

The fact that it was subsequently determined by the Probate Court that the applicant was not Michelle G.’s biological father does not show that, during the time when she was presumed to be his issue, the applicant was not her guardian. In fact, the definition of guardian in § 45a-604 does not require a guardian to be a parent. The transcript before us contains a series of colloquies between the attorneys and the court that include the applicant’s allegations that he is named as the father on the birth certificate, that he maintained visitation with Michelle G. regularly for about two years until his visitation was rescinded and that he maintained health insurance for her. Nothing in the transcript indicates, however, that the parties had the opportunity to present evidence and to cross-examine adverse witnesses.

Because there are issues of fact necessary to the determination of the Superior Court’s jurisdiction, and there is nothing in the transcript of the proceedings before the Superior Court indicating that there was an evidentiary hearing relating to the applicant’s claims, which were contested by the maternal grandmother, we conclude that due process requires that the Superior Court conduct an evidentiary hearing to determine whether the applicant is a father under the laws of this state or a former guardian.

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

In this opinion the other judges concurred.

       General Statutes § 45a-611 provides: “(a) Any parent who has been removed as the guardian of the person of a minor may apply to the court of probate which removed him or her for reinstatement as the guardian of the person of the minor, if in his or her opinion the factors which resulted in removal have been resolved satisfactorily.
      “(b) In the case of a parent who seeks reinstatement, the court shall hold a hearing following notice to the guardian, to the parent or parents and to the minor, if over twelve years of age, as provided in section 45a-609. If the court determines that the factors which resulted in the removal of the parent have been resolved satisfactorily, the court may remove the guardian and reinstate the parent as guardian of the person of the minor, if it determines that it is in the best interests of the minor to do so. At the request of a parent, guardian, counsel or guardian ad litem representing one of the parties, filed within thirty days of the decree, the court shall make findings of fact to support its conclusions.
      “(c) The provisions of this section shall also apply to the reinstatement of any guardian of the person of a minor other than a parent.”

       On December 9, 1996, the applicant appealed from the Probate Court’s November 8, 1996 denial of his application. During the Superior Court’s January 29, 1998 hearing, all parties agreed that the appeal was untimely. Therefore, the only action before the Superior Court was the applicant’s August 27,1997 application for reinstatement as guardian and not an appeal on the original motion.

       Chapter 815y, General Statutes § 46b-160 et seq., deals with paternity matters.

       We note, however, that the Superior Court stated that “[i]t does not appear that the paternity test was entered in evidence in the Probate Court.”


source: Caselaw Access Project

author: SULLIVAN, J.

license: Public Domain

text:
    RAYMOND L. FUNAIOLI v. CITY OF NEW LONDON ET AL.
    (AC 17789)
    Landau, Sullivan and Kulawiz, Js.
    Argued December 9, 1998
    officially released March 9, 1999

      Dominic S. Piacenza, for the appellant (plaintiff).

      Richard Bartlett, with whom, on the brief, was Timothy E. Welsh, for the appellees (defendants).
   Opinion

SULLIVAN, J.

The plaintiff, Raymond L. Funaioli, appeals from the decision rendered by the workers’ compensation review board (board) reversing the commissioner’s decision in the plaintiffs favor. The disposi-tive issue in this appeal is whether an employer’s first report of injury form and an attorney’s letter taken together meet the statutoiy requirement of a written notice of claim. We reverse the board’s decision.

An examination of the board’s record discloses the following facts. During a routine physical examination in March, 1987, the plaintiff was diagnosed with hypertension, for which his physician prescribed medication. In March, 1988, at the suggestion of the police union, the plaintiff hired the firm of Flynn & Flynn, P.C., to represent him in his hypertension claim.

A claimant for workers’ compensation benefits must provide both notice of injury; General Statutes § 31-294b, formerly § 31-294; and notice of a claim. General Statutes § 31-294c, formerly § 31-294. General Statutes (Rev. to 1987) § 31-294, now §§ 31-294b and 31-294c, requires “a written notice of claim . . . [that states] in simple language, the date and place of the accident and the nature of the injury resulting therefrom, or the date of the first manifestation of a symptom of the occupational disease and the nature of such disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed. ...”

Paul Flynn sent a letter to the second district workers’ compensation commissioner and to the chairman of the workers’ compensation commission that stated: “Enclosed you will find a WC Form 15 with reference to the above-named Claimant. We are not requesting a hearing at this time.” The letter to the commissioner bore the heading: “RE: Raymond Funaioli versus the City of New London, 7-433c claim, 3/27/87.” The letter to the chairman did not include the words “7-443c claim, 3/27/87.” Included with the letter was a workers’ compensation employer’s first report of occupational injury or disease form 15, which was signed by Charles Flynn. Charles Flynn testified that it was the firm’s common practice to use a form 30C notice of claim and that he had never before used form 15 for notice of claim purposes. A clerical worker for the commission testified that the receipt of a form 30C results in the creation of a file for a claim whereas the receipt of a form 15 does not.

The plaintiff did not file a form 30C notice of claim until 1992 through a new attorney, Dominic Piacenza. The commissioner found that the form 15 and cover letter constituted sufficient notice and thus tolled the one year statutory limit for filing a notice of claim. The board reversed the commissioner’s decision, and this appeal followed.

The plaintiff claims on appeal that the board improperly reversed the commissioner’s determination that the documents filed by the plaintiff satisfied the statutory requirement of a written notice of a claim. We agree.

“[T]he power and duty of determining the facts rests on the commissioner, who is the trier of fact. Fair v. People’s Savings Bank, 207 Conn. 535, 539 [542 A.2d 1118] (1988), citing Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457 [78 A.2d 339] (1951). This authority to find the facts entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses. Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 [630 A.2d 136] (1993), appeal dismissed, 229 Conn. 587 [642 A.2d 721] (1994). On review, the commissioner’s conclusions must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. The commissioner’s findings can be changed only if they contain facts found without evidence or fail to include material facts which are admitted and undisputed. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).” Kincaid-Ross v. State, 3350 CRB-1-96-5 (December 4, 1997).

Although the board properly noted that a form 15 alone would not meet the notice requirement, the determination of whether a form 15 taken together with Flynn’s letter met the notice requirements is ultimately a question of fact.

“The legislature designed the Workers’ Compensation Act to further a remedial purpose. . . . The act’s provisions, therefore, should be broadly construed to accomplish its humanitarian purpose.” (Citation omitted; internal quotation marks omitted.) Black v. London & Egazarian Associates, Inc., 30 Conn. App. 295, 302-303, 620 A.2d 176, cert. denied, 225 Conn. 916, 623 A.2d 1024 (1993). Neither statutory nor decisional law mandates the use of any particular form for the notice of a claim. Id., 303. “[T]he written notice intended is one which will reasonably inform the employer that the employee is claiming or proposes to claim compensation under the Act.” Rehtarchik v. Hoyt-Messinger Corp., 118 Conn. 315, 317, 172 A. 353 (1934); see also Hayden-LeBlanc v. New London Broadcasting, 12 Conn. Workers’ Comp. Rev. Op. 3 (1995) (filing of group insurance form and insurer’s denial constitute written notice of claim considering “totality of circumstances”).

The commissioner found that the plaintiff in this case sent a form 15 with a cover letter bearing the heading “RE: Raymond Funaioli versus the City of New London, 7-433c claim, 3/27/98” and indicating that a hearing was not requested. On the basis of that finding, the commissioner concluded that the notice of claim requirement had been met. The board recognized that the commissioner’s conclusions rested on findings, yet nonetheless proceeded to reject the commissioner’s determination. Because the commissioner’s determination is supported by his factual findings, we cannot conclude that he improperly found that the documents submitted by the plaintiff met the notice of claim requirement.

The decision of the workers’ compensation review board is reversed and the case is remanded with direction to affirm the commissioner’s decision.

In this opinion the other judges concurred.

       It appears from the record that the plaint iff hired Paul Flynn. Paul Flynn’s brother and law partner, Charles Flynn, also played a role in the case. Although the case file was Paul Flynn’s, it was Charles Flynn who signed the fonn 15 and testified before the commissioner.

       General Statutes § 31-294b provides: “Any employee who has sustained an injury in the course of his employment shall immediately report, the injury to his employer, or some person representing his employer. If the employee fails to report the injury immediately, the commissioner may reduce the award of compensation proportionately to any prejudice that he finds the employer has sustained by reason of the failure, provided the burden of proof with respect to such prejudice shall rest upon the employer.”

       General Statutes § 31-294c provides in relevant part: “(a) No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury, provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation within the two-year period or within one year from the date of death, whichever is later. Notice of a claim for compensation may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident, or the date of the first manifestation of a symptom of the occupational disease and the nature of the disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed. ...”

       The board’s opinion stated: “Even though the elements of § 31-294 might all have been present somewhere in that FRI [First Report of Injury—form 15], the use of that form negated the effect that the content alone might have had on another piece of paper. The accompanying cover letter simply stated that a form 15 was enclosed, and that the ‘claimant’ was not requesting a hearing at this time. From those documents, an employee of this commission could not infer that the claimant’s attorney was attempting to file a claim rather than an injury report. Thus, the trial commissioner decision must be reversed.”


author: LANDAU, J.

text:
    RICHARD D. JONES ET AL. v. EDGARDO IPPOLITI ET AL.
    (AC 15401)
    Landau, Sehaller and Healey, Js.
    Argued September 15, 1998
    officially released March 16, 1999

      Frank J. Silvestri, Jr., with whom were Paul L. Bollo and, on the brief, Maximino Medina, Jr., for the appellants-appellees (defendants).

      Eliot B. Gersten, with whom was Jeanine M. Dumont, for the appellees-appellants (plaintiffs).
   Opinion

LANDAU, J.

The defendants appeal from the judgment of the trial court, rendered after a trial to the court, awarding damages, offer of judgment interest and attorney’s fees to the plaintiffs for services rendered by the plaintiffs to the defendants. In a succession of challenges to the factual findings of the trial court, the defendants claim that the trial court improperly found (l).that they failed to tender payment of the underlying debt, (2) that the promissory note executed by the defendants to the plaintiffs had not been paid, (3) that the defendants committed fraud and breached the duty of good faith, (4) that the depositing of funds into a particular account, the subsequent creation of certified checks and the transfer of equipment constituted an intent to defraud, (5) that the defendant Edgardo Ippol-iti was the alter ego of the corporation under the identity rule, (6) that the award of attorney’s fees was unreasonable and unconscionable and (7) that, as a matter of law, the defendants’ failure to file a certificate of adoption of trade name, in addition to the findings of fraud and fraudulent conveyance, amounted to an unfair and deceptive practice as defined in the Connecticut Unfair Trade Practices Act (CUTPA). In addition, the defendants claim that the trial court violated the Code of Judicial Conduct and General Statutes § 51-5U in that, not only was the appearance of impropriety present, but actual bias existed and, therefore, as a matter of public policy, the entire judgment should be set aside. In their cross appeal, the plaintiffs seek to recover “in-house” attorney’s fees for the services they performed to assist their trial counsel in the prosecution of this case. We affirm the judgment of the trial court.

The trial court found the following facts. In 1990, Edgardo Ippoliti, a shareholder of the defendant corporation, a masonry subcontractor, retained the plaintiffs to represent the defendant corporation in a dispute with Turner Construction Company, a general contractor, concerning the construction of the Yale Center for Molecular Medicine in New Haven. As the Ippoliti account fell in arrears, the plaintiffs suggested that the defendants agree to reduce the balance of their account to a promissory note. On March 1, 1991, the defendant corporation and Ippoliti jointly and severally executed a promissory note, which had a maturity date of December 31, 1991, in favor of the plaintiffs. On December 17, 1991, and through subsequent statements to the plaintiffs, Ippoliti promised that he would be individually liable on a new promissory note covering the balance then due, $90,950.21, which included the unpaid original note. Ippoliti failed to execute the new promissory note and made false representations in order to induce the plaintiffs to continue to represent the defendants in the Turner matter.

The defendants thereafter failed to tender payment to the plaintiffs. The plaintiffs commenced the underlying action in 1993 to collect fees for services rendered, primarily in connection with the defendant corporation’s dispute with Turner Construction Company, together with interest and attorney’s fees. The plaintiffs alleged breach of contract, failure to pay a promissory note, quantum meruit, promissory estoppel, breach of a duty of good faith and fair dealing, fraudulent conveyance, fraud and violation of CUTPA. The defendants counterclaimed, alleging breach of contract and breach of the duty of good faith and fair dealing, conversion and violation of CUTPA. Following a lengthy trial, the trial court found for the plaintiffs on each count of the complaint and on each count of the counterclaim.

I

THE APPEAL

Initially, we address the defendants’ claim that the public policy embodied in Canon 3 (c) of the Code of Judicial Conduct and General Statutes § 51-5H compels this court to set aside the judgment. Specifically, the defendants claim that the issue in this case is not an appearance of bias but whether there is actual bias.

The following additional facts axe relevant to the resolution of this claim. On November 17, 1994, at the beginning of the trial, the trial judge volunteered that he was familiar with the masonry business because, as an attorney, he had represented a mason supplier, American Mason Supply. At that time, the defendants’ counsel failed or neglected to advise the trial court of any contact between American Mason Supply and the defendants. Approximately one month later, the trial judge recognized the name of American Mason Supply when he reviewed recently subpoenaed documents. The trial judge, still unaware of any relationship between American Mason Supply and the defendants, pointed out that he had represented American Mason Supply in the past and indicated that the owner of the company was a close friend. A lengthy discussion followed in which the defendants’ counsel informed the court that while he was aware of the fact that the court had represented American Mason Supply, he had not been aware of the close friendship that existed between the court and the principal of that company.

During this discussion, the plaintiffs’ counsel urged that the defendants either move to recuse the trial judge or waive the alleged conflict in order to avoid that issue on appeal. The trial judge represented that he saw no problem with the relationship’s interfering with his adjudication of the case. Furthermore, the trial judge noted that he was familiar with a member of the plaintiffs’ law firm because, when he represented American Mason Supply, the plaintiffs’ law firm acted as opposing counsel and that particular attorney might have been hardheaded during negotiations. After further discussion regarding the nature of the relationship between the court and the owner of American Mason Supply, the defendants’ counsel stated: “Your Honor, I accept the court’s representations and I will not make a motion to recuse,” at which point the trial continued.

The defendants assert that the public policy embodied in Canon 3 (c) and § 51-5M does not confer rights on litigants but, instead, imposes duties on the judiciary and, thus, the defendants could not have waived the claim of actual bias of the trial court. Furthermore, the defendants appear to argue that actual bias existed in the proceeding based on the trial court’s conclusions regarding the finding of fraud, the finding that the promissory note had not been paid, the awarding of attorney’s fees, the piercing of the corporate veil, the issuance of an ex parte attachment after the trial but before final judgment was rendered, and the termination of the automatic stay.

While we realize that both the original action and the appeal have a long history, the record in this hotly contested collection action is bare of any evidence substantiating allegations of judicial bias. In fact, the record reveals that the trial judge affirmatively and candidly placed on the record his relationship with American Mason Supply and permitted the defendants the opportunity to move to recuse him. The defendants chose not to take advantage of the opportunity presented by the trial court but, instead, proceeded to trial. “We have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial. We have repeatedly indicated our disfavor with the failure, whether because of a mistake of law, inattention or design, to object to errors occurring in the course of a trial until it is too late for them to be corrected, and thereafter, if the outcome of the trial proves unsatisfactory, with the assignment of such errors as grounds of appeal.” (Internal quotation marks omitted.) Krattenstein v. G. Fox & Co., 155 Conn. 609, 616, 236 A.2d 466 (1967); Parker v. Shaker Real Estate, Inc., 47 Conn. App. 489, 497, 705 A.2d 210 (1998); see also Schnabel v. Tyler, 32 Conn. App. 704, 714-15, 630 A.2d 1361 (1993), aff'd on other grounds, 230 Conn. 735, 646 A.2d 152 (1994) (failure to request recusal or to move for mistrial represents acquiescence to judge’s presiding over trial and prohibits review of claim on appeal); Emerick v. Emerick, 28 Conn. App. 794, 808, 613 A.2d 1351, cert. denied, 224 Conn. 915, 617 A.2d 171 (1992) (when not raised at trial by motion for disqualification, claims alleging judicial bias deemed waived); Lo Sacco v. Young, 20 Conn. App. 6, 9, 564 A.2d 610, cert. denied, 213 Conn. 808, 568 A.2d 793 (1989) (failure to request recusal or to move for mistrial construed as functional equivalent of consenting to judge’s presiding over trial). We conclude, therefore, that this claim is without merit.

As to the remaining claims on appeal, the parties agree that they encompass a challenge to the trial court’s findings of facts. “Our role in reviewing an appeal based on the sufficiency of the evidence is well defined. Where the claim is that the evidence produced did not satisfy the burden of proof factually, the duty of an appellate court is well established. An appeal based on the sufficiency of evidence to support a factual finding carries a legal and practical restriction to review. The function of an appellate court is to review, and not to retry, the proceedings of the trial court. . . . Further, we are authorized to reverse or modify the decision of the trial court only if we determine that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that its decision is otherwise erroneous in law. ... It is, however, not our function to retry the case or to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) Clement v. Clement, 34 Conn. App. 641, 650, 643 A.2d 874 (1994). “Where there is conflicting evidence . . . we do not retry the facts or pass upon the credibility of the witnesses.” (Internal quotation marks omitted.) Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W, 190 Conn. 371, 404, 461 A.2d 422 (1983). The probative force of conflicting evidence is for the trier to determine. Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 257, 524 A.2d 610 (1987). “ ‘In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.’ Kimberly-Clark Corp. v. Dubno, 204 Conn. 137, 153, 527 A.2d 679 (1987).” Steiger v. J. S. Builders, Inc., 39 Conn. App. 32, 34-35, 663 A.2d 432 (1995).

The parties to this litigation presented the trial court with conflicting evidence. The trial court heard the witnesses, judged their credibility and, in its memorandum of decision, set out a full and thorough finding of facts, on which it based its verdict, and awarded relief. After a careful review of the whole record, we are satisfied that the trial court had sufficient evidence to support its factual findings and, therefore, its verdict and the relief granted were not clearly erroneous.

II

THE CROSS APPEAL

By their cross appeal, the plaintiffs seek to recover “in- house” counsel fees for the services they performed to assist their trial counsel. Specifically, the plaintiffs claim that attorneys and paralegals employed by the plaintiffs’ law firm (hereinafter Pepe and Hazard) spent substantial time assisting trial counsel, i.e., Gersten and Clifford, prior to and during trial by drafting numerous pleadings and briefs, conducting research and completing several other tasks necessary to prosecute this claim. The plaintiffs urge us to adopt what they claim to be a trend in other jurisdictions to award reasonable attorney’s fees for both outside counsel, as well as in-house counsel, who participate in the prosecution of a claim in which attorney’s fees can be awarded. We decline to do so.

Ordinarily, a successful litigant is not entitled to an award of attorney’s fees. See Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 72, 689 A.2d 1097 (1997). This rule is known as the “American rule.” See 20 Am. Jur. 2d, Costs § 72. “Connecticut adheres to the American rule. See, e.g., Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 14, 513 A.2d 1218 (1986); Gino’s Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 140, 475 A.2d 305 (1984); Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 297, 472 A.2d 306 (1984); Litton Industries Credit Corporation v. Catanuto, 175 Conn. 69, [76], 394 A.2d 191 (1978) . . . .” (Citations omitted; internal quotation marks omitted.) Rizzo Pool Co. v. Del Grosso, supra, 72-73. Connecticut recognizes, however, the exceptions to this rule. A successful litigant is entitled to an award of attorney’s fees if they are provided by contract; see Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 245, 440 A.2d 306 (1982); by statute; see, e.g., General Statutes § 52-251a (attorney’s fees awarded on small claims matter transferred to regular docket); or as an aspect of punitive damages. See Bodner v. United Services Automobile Assn., 222 Conn. 480, 492, 610 A.2d 1212 (1992). In the case before us, the trial court awarded the plaintiffs attorney’s fees pursuant to the promissory note (count one) and CUTPA (count nine), and as a punishment for the defendants’ fraudulent conduct (count eight).

Neither our Supreme Court nor this court has ruled on the propriety of an award of attorney’s fees to in-house counsel who themselves are plaintiffs in the underlying action. The plaintiffs insist that the services Pepe and Hazard provided arise naturally and generally from the acts of the defendants, and that the defendants are, therefore, liable to pay them. By denying the plaintiffs’ request for fees for Pepe and Hazard’s services, the plaintiffs claim that the trial court indirectly penalized them for their decision to provide trial counsel with legal support throughout the case. Specifically, the plaintiffs argue that, in this case, an award to the successful litigant of reasonable attorney’s fees for the services Pepe and Hazard provided is appropriate because the time devoted to this case was time not Available for other work.

In opposition, the defendants place before us a number of cases in which courts have denied an award of attorney’s fees to plaintiffs who are attorneys appearing on their own behalf. The defendants assert that if plaintiff-attorneys representing themselves are not entitled to an award of attorney’s fees, then, a fortiori, plaintiff-attorneys who merely assist their trial counsel, for whose services they have received an award of attorney’s fees, are not entitled to an award of attorney’s fees for their own services. The distinction raised by the defendants is significant.

To begin our analysis, we must determine whether Pepe and Hazard and in-house counsel are synonymous. The plaintiffs identify and describe themselves at paragraph one of their amended complaint: “Plaintiffs . . . are attorneys at law duly licensed to practice law in the state of Connecticut and in good standing; the plaintiffs practice law under the name and style of Pepe & Hazard .. . .”

We now look to the accepted definitions of attorney and in-house counsel. “Attorney. In the most general sense this term denotes an agent or substitute, or one who is appointed and authorized to act in the place or stead of another.” Black’s Law Dictionary (6th Ed. 1990). “House counsel. Lawyer who acts as attorney for business though carried as an employee of that business and not as an independent lawyer. Generally, such lawyer advises business on day to day matters. Larger businesses have legal departments with attorneys assigned to specialized areas of law affecting their particular business . . . .” Id. “House counsel: A lawyer who is an attorney-employee of a business or organization. He or she works for a salary, unlike an independent attorney who works for a fee.” W. Statsky, Legal Thesaurus/Dictionary (1986). “A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” Preamble, Rules of Professional Conduct. By definition, the plaintiffs are not in-house counsel because they are not employees of a business whose function is to advise the business on day-to-day matters. We conclude, therefore, that the cases cited by the plaintiffs in support of their claim that the trial court should have awarded them attorney’s fees for the services performed by Pepe and Hazard are factually distinguishable in that attorney’s fees in those cases were awarded for the work done by in-house counsel in businesses such as insurance companies.

The next question is whether Pepe and Hazard functioned as an attorney in this matter. To begin with, we note that Pepe and Hazard did not enter an appearance on behalf of the plaintiffs in this matter. “Except by leave of the judicial authority, no attorney shall be permitted to appear1 in court or to be heard in behalf of a party until the attorney’s appearance has been entered. . . .” Practice Book § 3-7 (a). Because Pepe and Hazard did not enter an appearance on behalf of the plaintiffs, it did not represent them in this action.

Even if we were to conclude otherwise, i.e., that Pepe and Hazard represented the plaintiffs, such representation would have been of a pro se nature. The law of this state is that pro se litigants are not entitled to attorney’s fees. See Lev v. Lev, 10 Conn. App. 570, 575, 524 A.2d 674 (1987). Therefore, the plaintiffs were not entitled to attorney’s fees for the services provided by Pepe and Hazard, and the trial court properly denied the plaintiffs’ request for them.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are Edgardo Ippoliti and Eppoliti, Inc. (the defendant corporation). Eppoliti Enterprises, Inc., was originally named as a defendant but claims against it have been withdrawn. Any reference to the defendants, therefore, includes only Edgardo Ippoliti and Eppoliti, Inc.

       The plaintiffs, partners in the law firm of Pepe and Hazard, are Richard D. Jones, Stephen B. Hazard, Louis R. Pepe, James A. Thompson, Ann P. Bird, Kathleen Bomhorst, James G. Green, Jr., Robert C. Hunt, Jr., Thomas G. Librizzi, David E. Rosengren, Walter W. Simmers, Michael A. Zizka, James C. Graham, James Mercier and Jeanine M. Dumont.

       See General Statutes § 42-110b (a) et seq.

       “Legal contentions, like the currency, depreciate through over-issue. The mind oí an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one [issue . . . Multiplying assignments of error will dilute and weaken a good case and will not save a bad one. . . . Most cases present only one, two, or three significant questions. . . . Usually ... if you cannot win on a few major points, the others are not likely to help. . . . The effect of adding weak arguments will be to dilute the force of the stronger ones. . . . State v. Pelletier, 209 Conn. 564, 567, 552 A.2d 805 (1989).” (Internal quotation marks omitted.) State v. Cruz, 40 Conn. App. 515, 525-26, 672 A.2d 502, cert. denied, 237 Conn. 909, 675 A.2d 457 (1996).
      At oral argument before this court, the defendants introduced arguments that were not presented in their briefs. This court will not consider arguments that are not presented in the briefs. See Shew v. Freedom of Information Commission, 245 Conn 149, 166 n.20, 714 A.2d 664 (1998). In Shew, the court refused to consider an argument presented by the plaintiff for the first time at oral argument because the claim was not briefed by either party. Id.; see also New Haven Firebird Society v. Board of Fire Commissioners, 32 Conn. App. 585, 591, 630 A.2d 131, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993), citing State v. Marra, 222 Conn. 506, 536 n.16, 610 A.2d 1113 (1992); Latham & Associates, Inc. v. William Raveis Real Estate, Inc., 218 Conn. 297, 300, 589 A.2d 337 (1991).

       The note provided for “any costs and expenses, including reasonable attorney’s . . . fees incurred in the collection of this Note or in any litigation or controversy arising from or connected with this Note.”

       This is evidenced by the following colloquy between the plaintiffs’ counsel and the defendant Ippoliti during trial:
      “Q. And you made a payment of $2000 a month for a few months [on the bills], didn’t you?
      “A. That’s correct.
      “Q. That was when the appeal was pending that Mr. Pepe had to defend?
      “A. Yes.
      * * *
      “Q. And you were continuing to have him do work on the Turner matter as well as other matters while the case was pending the appeal.
      “A. That’s correct.
      :]; * *
      “Q. And did you continue to make promises to [Mr. Pepe] that you’d make sure he got paid . . . ?
      “A. I told Mr. Pepe that he was going to get paid.
      * * *
      “Q. You reached an understanding to pay Mr. Pepe’s law firm $85,000 to discount the outstanding account receivable, didn’t you?
      “A. I reached an understanding with Mr. Pepe to pay him $85,000.
      “Q. And did you ever pay him that [amount]?
      “A. I was more than willing to pay him.
      “Q. Have you paid him today?
      “A. No. I have not.”

       The judgment reflects that the trial court awarded the plaintiffs damages in the amount of $155,882.28, offer of judgment interest in the amount of $56,890.97 and attorney’s fees of $163,134.80.

       Canon 3 (c) of the Code of Judicial Conduct provides in relevant part: “Disqualification. (1) A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned

       The defendants erroneously cite General Statutes § 50-51Í in their statement of issues, but do correctly cite General Statutes § 51-51Í (a) (2) in their argument and it is in their appendix. General Statutes § 51-Sli (a) provides in relevant part: “In addition to removal by impeachment and removal by the Governor on the address of two-thirds of each house of the General Assembly as provided in the Connecticut Constitution, a judge shall be subject, in the manner and under the procedures provided in this chapter to censure, suspension or removal from office for ... (2) wilful violation of section 5l-39a or any canon of judicial ethics . . . .”

       The following colloquy took place during trial:
      “The Court: Well, first of all, let me just malee this point. I think I made it before. I used to represent American Mason Supply. Not on this case, this came up after I went on the bench, but the owner of American Mason is a close friend of mine. Does anybody see any problem with that. I don’t—
      “[Defense Counsel]: Yes, I do.”

       The attorney for the plaintiffs stated: “Your Honor, before we go any further just because in any event of an appeal, I don’t want to be blindsided any more so than I think the court wants to be. The problem [the defendants’ counsel is] raising now is either going to be the subject matter of what I can just see down the road of the judge should have recused himself, or [the defendants’ counsel is] going to say, he’s not going to press such a claim, but let’s try not to be blindsided by something that’s done later, and I would respectfully ask the court to determine from [the defendants’ counsel] if he’s making a claim that you should be subject to some recusal because if he’s not, then we can go on. If he is and he’s going to try to preserve such claim by that vague, quote, ‘problem,’ I just don’t want to have to deal with it on appeal.”

       We note that the defendants never raised this issue at trial but instead held that arrow in their appellate quiver, while reaping the benefit of a full trial. We may invoke our supervisory authority to review a claim that was not raised at trial where we deem it appropriate given the nature and significance of the issue. See West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 507, 636 A.2d 1342 (1994).

       This matter does not require us to determine whether fees for services performed by paralegals may be claimed as attorney’s fees. But see General Statutes § 42-110g (d) at footnote 15.

       In support of their claim, the plaintiffs cite Pittsburgh Plate Glass Co. v. Fidelity & Casualty Co. of New York, 281 F.2d 538, 542 (3d Cir. 1960) (attorney’s fees awarded for services provided by insurance company’s in-house counsel); Central States, Southeast & Southwest Areas Pension Fund v. Central Cartage Co., 76 F.3d 114, 115 (7th Cir.), cert. denied sub nom. Mason & Dixon Lines, Inc. v. Central States, Southeast & Southwest Areas Pension Fund, 519 U.S. 811, 117 S. Ct. 56, 136 L. Ed. 2d 19 (1996) (motion concerning cost sharing of fees and rate at which services of staff counsel should be reimbursed); B-E-C-K Constructors v. Dept. of Highways, 604 P.2d 578, 585 (Alaska 1979) (state awarded attorney’s fees for services of outside counsel, as well as for staff attorney general); Travelers Ins. Co. v. State Ins. Fund, 155 Misc.2d 542, 546, 588 N.Y.S.2d 973 (Ct. Cl. 1992) (attorney’s fees for services of in-house counsel pursuant to agreement of coinsurers to share cost of defense), aff'd 227 App. Div. 2d 208, 642 N.Y.S.2d 867 (1996); Metropolitan Mortgage & Securities Co. v. Becker, 64 Wash. App. 626, 632-34, 825 P.2d 360 (1992) (no prohibition against attorney’s fees for in-house counsel).

       General Statutes § 42-110g (d) provides in relevant part: “In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys’ fees based on the work reasonably performed by an attorney and not on the amount of recovery. ...”

        Connor v. Cal-Az Properties, Inc., 137 Ariz. 53, 55-56, 668 P.2d 896 (1983); O’Connell v. Zimmerman, 157 Cal. App. 2d 330, 336-37, 321 P.2d 161 (1958); Sessions, Fishman, Rosenson, Boisfontaine & Nathan v. Taddonio, 490 So. 2d 526, 527 (La. App. 1986).

       This case does not require us to determine whether, in the appropriate circumstances, a plaint iff may be entitled to attorney’s fees for the services that in-house counsel provides to outside counsel during the course of litigation. We leave that issue for another day.


author: LAVERY, J.

text:
    CONNECTICUT INSURANCE GUARANTY ASSOCIATION v. ANTHONY ZASUN
    (AC 17444)
    O’Connell, C. J., and Foti and Lavery, Js.

      Argued September 29, 1998
    officially released March 16, 1999

      Alan J. Cooke, with whom were Brian W. Smith and, on the brief, James P. Mooney, Joseph C. Marrow, pro hac vice, and Joseph C. Tanski, pro hac vice, for the appellant (plaintiff).

      George H. Romania, with whom, on the brief, was Michael E. Rizzo, for the appellee (defendant).
   Opinion

LAVERY, J.

The plaintiff Connecticut Insurance Guaranty Association (association) appeals from the judgment of the trial court denying its application to vacate an arbitration panel’s award of uninsured motorist benefits to the minor defendant, Anthony Zasun. The initial claim for uninsured motorist benefits was brought by Beth Onolfo as next friend of Zasun. On appeal, the association claims that the trial court improperly denied its application to vacate the arbitration award by (1) ruling that the arbitration panel had subject matter jurisdiction to interpret and apply the provisions of the Connecticut Insurance Guaranty Association Act (guaranty act), (2) concluding that the arbitration was voluntary and unrestricted, (3) applying the standard of whether the award conformed to the submission, (4) failing to conduct a de novo review of the legal issues concerning coverage, (5) failing to apply the substantial evidence test of factual findings concerning coverage issues, (6) failing to conclude that the arbitrators’ findings evidenced a manifest disregard of the law and (7) failing to determine whether the arbitration panel had demonstrated a manifest disregard of the law concerning defenses raised by the association. We affirm the judgment of the trial court.

The following facts are not in dispute. On or about August 9, 1991, D & L Transportation Company (bus company) entered into a contract of motor vehicle insurance with United Community Insurance Company (insurer). Pursuant to the insurance policy, the insurer was to provide the bus company with $1,000,000 of single limit uninsured motorist coverage. At some later undetermined date, the bus company requested that the uninsured motorist coverage provided by the contract be reduced to $40,000. The insurance contract also contained an arbitration clause. On November 1, 1991, Zasun was a passenger on a school bus owned by the bus company when it was struck by an unidentified tractor trailer. Zasun sustained serious personal injuries as a result of the accident.

In January, 1993, Zasun commenced an action against the insurer to compel arbitration of his uninsured motorist claim. The trial court, Hodgson, J., ordered the parties to proceed to arbitration. During the pen-dency of the arbitration proceeding, the insurer was adjudicated insolvent. Thus, pursuant to the guaranty act, the association became a party to the arbitration and assumed defense of the defendant’s claim. The following issues were submitted to the panel: What coverage did the policy provide? Did the panel have the authority to interpret the guaranty act? Was the association entitled to a credit for the benefits the defendant received from a health insurance carrier?

On June 10, 1996, the panel unanimously assessed damages in the amount of $850,000. In accordance with the guaranty act; see General Statutes § 38a-841 (1) (a) (ii); the panel concluded that the maximum amount the defendant could recover from the association was $299,900. Neither party asked the panel to articulate the basis of its award. The association then applied to the trial court to vacate the panel’s award, claiming that the panel lacked authority or subject matter jurisdiction to interpret provisions of the guaranty act because such authority lies only within the jurisdiction of the trial court. The association also claimed that the panel’s findings evidenced a manifest disregard of the law and that the panel exceeded its jurisdictional powers or so imperfectly executed them that a mutual, final and definite award on the subject matter was not made. See General Statutes § 52-418. The association asked the trial court to conduct a de novo review of the legal issues that arose during the arbitration.

The defendant filed a motion to confirm the arbitration panel’s award, arguing that because the arbitration was voluntary and the submission was unrestricted, the trial court’s review was limited to whether the award conformed to the submission. At oral argument before the trial court, counsel for the association conceded that the arbitration, when it commenced, was voluntary and that the submission was unrestricted. The association claimed, however, that once it assumed the defense of the claim, the arbitration ceased to be governed by uninsured motorist law and became an arbitration governed by the guaranty act.

The trial court, VertefeuiUe, J., in its memorandum of decision, found that the arbitration was voluntary and unrestricted, and ruled that the standard to be applied on review was whether the award conformed to the submission. The trial court found that the arbitration panel’s award did conform to the submission. The trial court also found that the issues of coverage, liability and damages were submitted to the arbitration panel at the outset of the arbitration proceeding when the insurer was defending the claim. The trial court ruled that it lacked authority to undertake a de novo review of the legal issues as requested by the association, denied the application to vacate and confirmed the award. This appeal followed.

I

On appeal, the association not only asserts multiple claims of impropriety on the part of the trial court, but also raises a subject matter jurisdictional claim, which is paramount. If the arbitration panel lacked subject matter jurisdiction over the dispute, we need not reach the association’s other claims. See Hunnihan v. Mattatuck Mfg. Co., 243 Conn. 438, 442, 705 A.2d 1012 (1997). The essence of the association’s jurisdictional claim before this court, simply stated, is that when the insurer became insolvent and the association was obligated to defend the claim, the arbitration panel was without authority to make an award because it would be called on to interpret and apply the guaranty act. Were we to give credence to this claim, no uninsured motorist arbitration panel would ever be able to complete its assignment if the motor vehicle insurance carrier became insolvent, regardless of the panel’s interpretation of the act. We, therefore, disagree with the association’s claim that the arbitration panel lacked subject matter jurisdiction to interpret the guaranty act for the purposes of the subject arbitration.

The association raised a similar jurisdictional issue in Hunnihan v. Mattatuck Mfg. Co., supra, 243 Conn. 438, where it claimed that the workers’ compensation commissioner was without jurisdiction to make decisions concerning the guaranty act “because the Workers’ Compensation Act limits the commission’s jurisdiction to claims and questions arising only under that act.” Id., 443. There, our Supreme Court looked to the relevant statutes and cited the “well established tenets of statutory construction. [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Furthermore, [w]e presume that laws are enacted in view of existing relevant statutes . . . and that [statutes are to be interpreted with regard to other relevant statutes because the legislature is presumed to have created a consistent body of law. . . . Conway v. Wilton, 238 Conn. 653, 663-64, 680 A. 2d 242 (1996).” (Internal quotation marks omitted.) Hun-nihan v. Mattatuck Mfg. Co., supra, 243 Conn. 444.

On the basis of its analysis of the relevant statutes, our Supreme Court disagreed with the association’s claim in Hunnihan that the workers’ compensation commissioner did not have jurisdiction to interpret the guaranty act, citing language in the Workers’ Compensation Act that directly refers to the association’s becoming obligated to pay claims owed by insolvent insurers and directing the commissioner to hear all claims arising under the compensation act, e.g., General Statutes §§ 31-278 and 31-355 (e). See Hunnihan v. Mattatuck Mfg. Co., supra, 243 Conn. 445.

By applying the same tenets of statutory construction to the statutes relevant to this case, we reach a similar conclusion with respect to the authority of an uninsured motorist arbitration panel and the guaranty act. The legislature enacted laws concerning automobile insurance and provided protection for residents who were injured by uninsured motorists. “Each automobile liability insurance policy shall provide insurance, herein called uninsured . . . motorist coverage . . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underin-sured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury . . . .’’General Statutes § 38a-336 (a) (1). Our uninsured motorist statutes direct how a voluntary arbitration shall proceed. See General Statutes § 38a-336 (c).

The legislature also recognized that insurers, including those who provide motor vehicle insurance, may become insolvent and provided for that possibility by creating the association. “For the purposes of administration and assessment, said association shall be divided into three separate accounts . . . (b) the automobile insurance accomt . . . .” General Statutes § 38a-839. “Said association shall ... (b) be deemed the insurer to the extent of its obligations on the covered claims and to such extent shall have all rights, duties, and obligations of the insolvent insurer as if the insurer had not become insolvent . . . .” (Emphasis added.) General Statutes § 38a-841 (1). Because the legislature is presumed to enact new legislation in view of existing law, we conclude that arbitrators of an uninsured motorist claim are empowered to consider the guaranty act when the association becomes a party to an uninsured arbitration proceeding.

Although the panel in this case was called on to interpret certain portions of the guaranty act, that task did not remove the arbitration from the operation of the uninsured motorist statutes. See General Statutes §§ 38a-336 (c) and 38a-839. “We construe [§ 38a-336 (a) (1)] to make no distinction between coverage issues governed wholly by the policy language and those which may also require the application of statutes or regulations in order to resolve them. The legislative purpose in providing arbitration as an expeditious method of dispute resolution for uninsured motorist claims would be thwarted by requiring arbitrators to interpret the policy language in one proceeding and the courts to determine in another the effect of statutes or regulations upon the issues involved. Such bifurcated procedure would be inconsistent with our view that [§ 38a-336 (a) (1)] transfers to the arbitration panel ‘the function of determining, in the first instance, all issues as to coverage’ where the policy contains a provision for arbitration of any uninsured motorist claim. . . . Oliva v. Aetna Casualty & Surety Co., [181 Conn. 37, 42, 434 A.2d 304 (1980)].” (Emphasis in original.) Wilson v. Security Ins. Group, 199 Conn. 618, 623-24, 509 A.2d 467 (1986).

Furthermore, we recognize that when a claim originates under the uninsured motorist statutes and at some point during the proceedings it becomes necessary for the arbitration panel to interpret provisions of other enactments in order to resolve the claim, the purposes and public policy concerns underlying the uninsured motorist statutes nevertheless continue to be implicated until a conclusion is reached. If there were no jurisdiction under such circumstances and the arbitration panel were precluded from seeing such claims through to conclusion, the result would be to thwart the uninsured motorist statutes and the public policy underlying them. See Hunnihan v. Mattatuck Mfg. Co., supra, 243 Conn. 446. Therefore, the panel had jurisdiction to consider the provisions of the guaranty act as necessary to arbitrate the defendant’s uninsured motorist claim.

II

We turn now to the association’s nonjurisdictional claims concerning the appropriate standard of review. “The court must first determine the standard it is required to apply in reviewing the decision of the arbitrators. This inquiry hinges on whether the arbitration was voluntary or compulsory, and, if voluntary, whether the submission was restricted or unrestricted. If the parties engaged involuntary arbitration, the trial court’s standard of review, provided that the submission was unrestricted, would be limited to whether the award conformed to the submission. ... If the parties engaged in voluntary, but restricted, arbitration, the trial court’s standard of review would be broader depending on the specific restriction. ... If the parties engaged in compulsory arbitration . . . the reviewing court must conduct a de novo review of the interpretation and application of the law by the arbitrators.” (Citation omitted; internal quotation marks omitted.) Norfolk & Dedham Mutual Fire Ins. Co. v. Wysocki, 45 Conn. Sup. 144, 146-47, 702 A.2d 675 (1996), aff'd, 243 Conn. 239, 702 A.2d 638 (1997).

A

The association’s first claim is that the trial court improperly concluded that the parties voluntarily agreed to arbitration. The trial court found, however, that the association conceded that the submission was voluntary and unrestricted. Our review of the hearing transcript supports that concession. See footnote 8. We hold, however, that the association’s concession at trial does not override the legislative mandate that issues of coverage must be arbitrated.

“[Section] 38a-336 [c] . . . provides in pertinent part that ‘[e]ach automobile liability insurance policy . . . which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding.’ General Statutes § 38a-336 (c).” Norfolk & Dedham Mutual Fire Ins. Co. v. Wysocki, supra, 45 Conn. Sup. 147. “This provision, [our Supreme Court has] held, makes arbitration of insurance coverage issues compulsory.” (Emphasis in original.) Bodner v. United Services Automobile Assn., 222 Conn. 480, 488, 610 A.2d 1212 (1992). Because the subject contract of insurance contains an arbitration provision, arbitration of the coverage issue in this matter is compulsory. We therefore conclude that the association’s concession at trial was of no consequence and agree with the association’s position on appeal that arbitration concerning the amount of coverage is compulsory rather than voluntary.

B

As a consequence of the trial court’s having improperly decided that arbitration of the coverage issue is voluntary, the association claims that the trial court improperly (1) applied the standard of whether the award conformed to the submission, (2) failed to conduct a de novo review of the issue concerning coverage and (3) failed to apply the substantial evidence test of factual findings concerning coverage issues. We agree with the association that the trial court was required to conduct a de novo review to determine whether the panel’s decision concerning arbitration of coverage was supported by substantial evidence in the record.

“We first set forth our standard of review of a statutorily mandated or compulsory arbitration award. When an arbitration panel’s interpretation and application of the law is at issue, an appellate court must conduct a de novo review. Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 375, 593 A.2d 498 (1991); Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 655 n.11, 591 A.2d 101 (1991).’ Middlesex Ins. Co. v. Quinn, 27 Conn. App. 573, 576, 609 A.2d 1008 (1992), aff'd, 225 Conn. 257, 622 A.2d 572 (1993); see also American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 191, 530 A.2d 171 (1987). Conversely, the appropriate standard of review of the factual findings of an arbitration panel is the substantial evidence test. Chmielewski v. Aetna Casualty & Surety Co., supra, 656. Pursuant to this test, the reviewing court must determine whether there is substantial evidence in the record to support the arbitrators’ findings of basic fact and whether the conclusions drawn from those facts are reasonable. Id., 660-61 n.15; Connecticut Light & Power Co. v. Dept. of Public Utility Control, 216 Conn. 627, 639, 583 A.2d 906 (1990).” Dobuzinsky v. Middlesex Mutual Assurance Co., 49 Conn. App. 398, 401-402, 714 A.2d 702, cert. denied, 247 Conn. 908, 719 A.2d 902 (1998).

Pursuant to § 38a-336, arbitration of uninsured motorist coverage issues is compulsory. Bodner v. United Services Automobile Assn., supra, 222 Conn. 488. Where arbitration is compulsory, the parties cannot agree to a lower standard of judicial review. See American Universal Ins. Co. v. DelGreco, supra, 205 Conn. 187-88. We conclude, therefore, that the trial court improperly failed to conduct a de novo review and to apply the substantial evidence test to the record with respect to coverage in this case.

C

Our analysis of this issue is not complete, however, as we may determine whether the substantial evidence in the record before us supports the reasonableness of the panel’s award as to the amount of coverage available to the defendant. We conclude, after conducting a de novo review, that there is substantial evidence to support the panel’s determination that there was $1,000,000 of uninsured motorist coverage available.

“A party not satisfied with a compulsory arbitration award may move to vacate the award pursuant to § 52-418. ... It is the established policy of the courts to regard awards with liberality. . . . Costello Construction Corp. v. Teamsters Local 559, 167 Conn. 315, 320, 355 A.2d 279 (1974). Every reasonable presumption and intendment will be made in favor of an award of arbitrators and of their acts and proceedings. Ramos Iron Works, Inc. v. Franklin Construction Co., 174 Conn. 583, 590, 392 A.2d 461 (1978); O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, 203 Conn. 133, 145, 523 A.2d 1271 (1987). Hence, the burden rests on the party attacking the award to produce evidence sufficient to invalidate or avoid it. Von Langendorff v. Riordan, 147 Conn. 524, 527, 163 A.2d 100 (1960). Thus, a reviewing court must uphold an arbitration award unless it determines that the factual findings of the arbitrators are not supported by substantial evidence in the record. Rydingsword v. Liberty Mutual Ins. Co., 224 Conn. 8, 21, 615 A.2d 1032 (1992); Chmielewski v. Aetna Casualty & Surety Co., [supra, 218 Conn. 660-61]; Allstate Ins. Co. v. Howe, 31 Conn. App. 132, 135-36, 623 A.2d 1031 [cert. denied, 226 Conn. 911, 628 A.2d 983] (1993). In cases where the arbitrators do not explicitly state findings, which they are not required to do, a reviewing court must search the record to determine whether there is substantial evidence to support the award.” (Internal quotation marks omitted.) Almeida v. Liberty Mutual Ins. Co., 234 Conn. 817, 824-25, 663 A.2d 382 (1995).

“This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain ... [a] finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Internal quotation marks omitted.) Dufraine v. Commission on Human Rights & Opportunities, 236 Conn. 250, 259-60, 673 A.2d 101 (1996). “The fact that a possibility exists that two inconsistent conclusions may be drawn from the evidence does not prevent the arbitrators’ finding from being supported by substantial evidence.” (Internal quotation marks omitted.) Allstate Ins. Co. v. Howe, supra, 31 Conn. App. 136.

“Whether a factual finding of an arbitration panel is supported by substantial evidence is ultimately a question of law subject to de novo review by this court. Chmielewski v. Aetna Casualty & Surety Co., [supra, 218 Conn. 667]; Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 593, 590 A.2d 447 (1991). Substantial evidence will be found to exist if the record contains a substantial basis of fact from which the fact in issue can be reasonably inferred. Adriani v. Commission on Human Rights & Opportunities, 220 Conn. 307, 315, 596 A.2d 426 (1991); Connecticut Light & Power Co. v. Dept. of Public Utility Control, [supra, 216 Conn. 639-40].” Capozzi v. Liberty Mutual Fire Ins. Co., 229 Conn. 448, 450-51, 642 A.2d 1 (1994).

The record before this court contains copies of the following relevant documents: the panel’s award; relevant portions of the insurance policy; portions of the bus company’s application for insurance; a signed coverage verification form dated October 10, 1991; a letter dated May 28, 1992, to the defendant’s attorney acknowledging receipt of the defendant’s claim and informing him that the bus company had “one million single limit coverage on the uninsured motorist portion of their policy”; and a certificate of insurance dated August 20, 1991.

We have reviewed all of these documents and conclude that they constitute substantial evidence as to the amount of coverage at issue. We find that the amount of coverage in effect on the date Zasun was injured was $1,000,000 and conclude that the panel’s award can reasonably be inferred from the substantial facts in the record. We therefore uphold that portion of the trial court’s judgment denying the association’s application to vacate.

III

Finally, the association claims that the trial court improperly failed to conclude that the panel’s award was in manifest disregard of the law with respect to the evidence and its defenses to the defendant’s claims. We do not agree.

“Our inquiry into ‘manifest disregard of the law’ as a ground for vacating an arbitration award is guided by well established principles of the law of consensual arbitration. . . . 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.) Garrity v. McCaskey, 223 Conn. 1, 4-5, 612 A.2d 742 (1992). “[W]e have, however, recognized three grounds for vacating an award ... (3) the award contravenes one or more of the statutory proscriptions of § 52-418.” (Citations omitted.) Id., 6. “Section 52-418 (a) (4) provides that an award shall be vacated 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.’ . . . We have also recognized, however, that an arbitrator’s egregious misperformance of duty may warrant rejection of the resulting award.” (Citations omitted.) Id., 7-8.

“Our recognition that there may be occasion to vacate an award because of egregious misbehavior is consistent with the developing jurisprudence in other jurisdictions. . . . Although the federal courts have interpreted their arbitration statute to permit this judicially created ground for vacating the award, they have carefully delineated the extraordinarily narrow scope of such a review. The test was applied to reject an aggrieved party’s invitation to review and vacate an arbitration award in Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bobker, 808 F.2d 930 (2d Cir. 1986), where the court held that ‘manifest disregard of the law’ ‘clearly means more than error or misunderstanding with respect to the law. . . . The error must have been obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator. Moreover, the term “disregard” implies that the arbitrator appreciates the existence of a clearly governing legal principle but decides to ignore or pay no attention to it. . . . Judicial inquiry under the “manifest disregard” standard is therefore extremely limited. The governing law alleged to have been ignored by the arbitrators must be well defined, explicit, and clearly applicable. We are not at liberty to set aside an arbitration panel’s award because of an arguable difference regarding the meaning or applicability of laws urged upon it.’ Id., 933-34.” (Citation omitted.) Garrity v. McCaskey, supra, 239 Conn. 8-9.

In the case before us, the parties submitted three issues to the panel: coverage, jurisdiction and whether the association is entitled to a credit for the benefits that the defendant received from his health insurance carrier. We have addressed the first two issues above. The third issue with respect to credits for benefits the defendant received was a voluntary, unrestricted submission by the association’s own admission. See footnote 8. The arbitration panel unanimously determined that the association was hable and assessed the amount of damages sustained by the defendant to be $850,000.

“[WJhere the parties voluntarily bargained for the decision of the arbitrator and, as such, the parties are presumed to have assumed the risks of and waived objections to that decision . . . [w]e have recognized that when arbitration is consensual, rather than statutorily imposed, judicial review is limited in scope. . . . If the parties mutually agree to submit their dispute to arbitration, the resulting award is not reviewable for errors of law or fact. . . . Judicial review of unrestricted submissions is limited to a comparison between the submission and the award to see whether, in accordance with the powers conferred upon the arbitrators, their award conforms to the submission.” (Citation omitted; internal quotation marks omitted.) Bodner v. United Services Automobile Assn., supra, 222 Conn. 487-88. Because the arbitration concerning the issue of credits for health insurance benefits was voluntary and unrestricted, the trial court was required to determine whether the award conformed to the submission. Furthermore, pursuant to the insurance policy, the parties agreed to be bound by the decision of the majority of the panel. See footnote 2.

The trial court found that two of the three members of the arbitration panel found for the defendant on the issue of whether the medical insurance benefits were to be deducted from the association’s $300,000 limit of coverage. Of the three arbitrators, each party selected at least two. The arbitrators were unanimous on two issues and voted two to one on the third issue, which demonstrates that the impropriety claimed by the association is not “obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator. ” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bobker, supra, 808 F.2d 933. The trial court, therefore, concluded that the award conformed to the submission. We agree.

Furthermore, the association’s position is contrary to our Supreme Court’s interpretation of General Statutes § 38a-845, formerly § 38-282. “We agree with those courts holding that statutory provisions similar to § 38-282 (1) were intended to apply only to prevent duplicate or windfall recoveries for losses sustained by an insured or a claimant resulting from insurer insolvency. In rejecting an argument similar to that raised by [the association], the Supreme Court of Arizona declared: ‘In general, the legislative objective was to make the Fund liable to the same extent that the insolvent insurer would have been liable under its policy.’ Arizona Property & Casualty Ins. Guaranty Fund v. Herder, 156 Ariz. 203, 205, 751 P.2d 519 (1988). ‘We note at the outset that the statute does not provide for any offset or reduction in limits payable.’ . . . The Washington Court of Appeals has similarly stated that ‘the purpose of the exhaustion provision is to avoid duplication of recovery and prevent windfall judgments’ in holding that a guaranty association ‘cannot offset payments by a primary insurer when it is standing in the shoes of an insolvent excess insurer.’ Washington Ins. Guaranty Assn. v. McKinstry Co., 56 Wash. App. 545, [553], 784 P.2d 190 [rev. denied, 114 Wash.2d 1017, 791 P.2d 535] (1990).” Connecticut Ins. Guaranty Assn. v. Union Carbide Corp., 217 Conn. 371, 390, 585 A.2d 1216 (1991).

The judgment is affirmed.

In this opinion the other judges concurred.

       See General Statutes § 38a-836 et seq.

       The arbitration provision of the contract states in relevant part: “a. If we and an ‘insured’ disagree whether the ‘insured’ is legally entitled to recover damages from the owner or driver of an ‘uninsured motor vehicle’ or do not agree as to the amount of damages, either party may make a written demand for arbitration. In this event, each party will select an arbitrator. The two arbitrators will select a third. . . .
      “b. Unless both parties agree otherwise, arbitration will take place in the county in which the ‘insured’ lives. ... A decision agreed to by two of the arbitrators will be binding.”

       General Statutes § 38a-841 (1) provides in relevant part: “Said association shall: (a) Be obligated to the extent of the covered claims existing prior to the determination of insolvency . . . (ii) with respect to covered claims other than for unearned premiums, such obligation shall include only that amount of each such claim which is in excess of one hundred dollars and is less than three hundred thousand dollars . . . .”

       One member of the panel dissented, stating, “I dissent. I agree with the decision of the majority as to all issues except that I further find that the [association] is entitled to a credit in the amount of $23,017.48 for collateral source benefits paid. I, therefore, would award the claimant, the sum of $276,882.52.”

       The amount of coverage was vigorously contested during the arbitration. The association claimed that the amount of uninsured motorist coverage available is only $40,000 and the defendant claimed that it is $1,000,000. On appeal, the association still contends that the amount of coverage is only $40,000 and, in addition, that its obligation must be reduced by the benefits the defendant received from the defendant’s medical insurance provider.

       General Statutes § 52-418 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects ... 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.”

       In addition to seeking confirmation of the award, the defendant sought interest on the award, pursuant to General Statutes § 37-3a, claiming that the plaintiff lacked good faith in moving to vacate the award. The trial court: declined to award the defendant interest. The defendant has not challenged that decision on appeal.

       The following colloquy took place at the hearing before the trial court:
      “The Court: Is there any dispute as to whether or not it was restricted or unrestricted?
      “[Plaintiffs Counsel]: Your Honor, what it was was a submission based under the relevant [uninsured motorist] law as briefed. The policy itself called for voluntary arbitration as briefed. However, I believe it was a full submission as a [uninsured motorist] matter. That’s not contested. What my legal position is that at some point in time this no longer was a [uninsured motorist] matter. It became a guaranty law case.
      “The Court: I understand. I’m limiting my questions to the arbitration as it was initiated, and I understand that [the association] wasn’t a party to that. I take it, then, with respect to the original submission there’s no dispute that is was unrestricted, then?
      “[Plaintiffs Counsel]: It was unrestricted [uninsured motorist] submission, Your Honor.
      “The Court: All right. And your position is that the arbitration was voluntary?
      “[Plaintiffs Counsel]: Up until a point, Your Honor. The submission at the [uninsured motorist] level, but in terms of the contract were voluntary. In does not appear that the language in the policy was mandatory. Both parties submitted to the [uninsured motorist] hearing voluntarily, and I understand that that has some effect on the level of review. However, there came a point in time when this case was no longer within the jurisdiction of the [uninsured motorist] arbitrators. I believe that all issues are ripe for de novo review for that reason.”

       The public policy underlying the uninsured motorist statutes is “ ‘to give an insured who is injured in an accident the same resource he would have had if the tortfeasor had carried liability insurance equal to the amount of the insured’s uninsured motorist coverage.’ ” Florestal v. Government Employees Ins. Co., 236 Conn. 299, 306, 673 A.2d 474 (1996), quoting American Motorists Ins. Co. v. Gould, 213 Conn. 625, 632, 569 A.2d 1105 (1990).

       Pursuant to our supervisory powers; see Practice Book § 60-2; we conclude that this court may properly undertake a de novo review of the coverage issue without, remanding the case to the trial court. See Ahneman v. Ahneman, 243 Conn. 471, 481, 706 A.2d 960 (1998).

       With the exception of the relevant portions of the insurance contract, these documents are contained in the appendix to the defendant’s brief. The burden is on the association to provide the reviewing court with evidence sufficient to vacate the panel’s award. See Von Langendorff v. Riordan, supra, 147 Conn. 527.

       “We can sustain a right decision although it may have been placed on a wrong ground.” Stapleton v. Lombardo, 151 Conn. 414, 417, 198 A.2d 697 (1964).

       Although the trial court concluded that the association had not made a claim of manifest disregard of the law in its application to vacate or in its briefs to the court, we fmd that the association's motion to vacate is premised on General Statutes § 52-418 (a) (4). The association’s “invocation of a doctrine of manifest disregard of 1 he law may, however, be encompassed by the existing statutory scheme for judicial review of arbitration in § 52-418.” Garrity v. McCaskey, 223 Conn. 1, 7, 612 A.2d 742 (1992).

       See footnote 12.

       The arbitrators determined that the amount oí coverage was $1,000,000. The association claims that that finding was based on the representations of an agent or employee of the insurer. The association further argues that a claim based on a representation of the coverage limits of insurance does not constitute a covered claim as defined by General Statutes § 38a-838 (6) because it does not arise out of and is not within the coverage of the insolvent insurance policy. See General Statutes § 38a-838 (6). The association contends that the claim as to the amount of coverage arises out of the conduct of the insurer.
      In support of this argument, the association cites several cases from other jurisdictions that are based on totally different factual situations. See Gauthier v. Champion Ins. Co., 583 So. 2d 556 (La. Ct. App. 1991) (penalties and attorney’s fees imposed against insolvent insurer not covered claims); Bentley v. North Carolina Ins. Guaranty Assn., 107 N.C. App. 1, 418 S.E.2d 705 (1992) (claim against insolvent insurer for bad faith refusal to settle, negligence and breach of fiduciary duty and unfair or deceptive trade practices not covered claim); Vaughn v. Vaughn, 23 Wash. App. 527, 597 P.2d 932, rev. denied, 92 Wash.2d 1023 (1979) (guaranty association not obligated on claim arising out of bad faith of insolvent insurer). The nature of the claims in the courts of our sister states are more analogous to the facts of Hunnihan v. Mattatuck Mfg. Co., supra, 243 Conn. 438, than to the facts of the case before us.
      Here, the claim before the arbitrators concerned the liability and damages of a child seriously injured in a hit-and-run school bus accident. The arbitrators had no authority to determine the propriety of the acts of the agents and employees of the insurer. The arbitrators made a factual finding on the amount of coverage of the policy for which there was substantial evidence.