text:
    Shelby Mutual Insurance Company v. Dennis Della Ghelfa et al.
    (2130)
    Dupont, C.P.J., Hull and Borden, Js.

      Argued December 5, 1984
    decision released March 26, 1985

      MarcN. Needelman, with whom was Edward Seltzer, for the appellant-appellee (plaintiff).

      Donald C. Simmons, with whom was William A. Conti, for the appellee-appellant (defendant Zbigniew S. Rozbicki).

      Paul R. Griffin, for the appellee (named defendant).
   Borden, J.

The principal issue in this appeal is whether the plaintiff, an automobile no-fault insurer which has paid more than $5000 to its insured for his economic loss, as defined in General Statutes § 38-319 (b), is, upon the insured’s recovery from a third party tortfeasor, limited to a lien of $5000. The trial court rendered a summary judgment holding that the plaintiff is so limited. As to this principal issue, we find error in that part of the summary judgment limiting the plaintiff’s recovery to $5000. We also find error in part on the cross appeal.

The plaintiff’s complaint is in two counts. The first count, which is against its insured, Dennis Della Ghelfa, alleges the following facts: As a result of an automobile collision on September 12, 1975, between Della Ghelfa and an automobile owned by Albert A. Seitz, operated by Michael Seitz and insured by Nationwide Insurance Company, the plaintiff paid Della Ghelfa, or for his benefit, $11,989.02 in basic reparations benefits under its automobile insurance policy with him. The plaintiff gave notice to Della Ghelfa and to his attorney, the defendant Zbigniew S. Rozbicki, of its statutory rights of reimbursement under General Statutes § 38-325 (b). On October 4, 1979, Della Ghelfa, represented by Rozbicki, obtained a judgment of $18,000 against the Seitzes which Nationwide paid to Della Ghelfa. The plaintiff claimed reimbursement of the $11,989.02 under General Statutes § 38-325 (b). The second count, which is against Rozbicki, alleges the same facts, and adds that Rozbicki obtained the $18,000 payment and, in violation of the plaintiff’s lien under General Statutes § 38-325 (b), wrongfully disbursed the proceeds of it.

Della Ghelfa filed an answer to the complaint. Rozbicki moved to strike the plaintiffs complaint on the ground that General Statutes § 38-325 (b) did not create a lien against him as Della Ghelfa’s attorney. The court, O’Donnell, J., denied the motion. Rozbicki thereupon filed an answer to the complaint. He also filed twenty-two separate special defenses.

The plaintiff moved to strike all twenty-two of Rozbicki’s special defenses, asserting that none of them stated a legally sufficient ground to defeat its claim. The court, Aspell, J., granted the plaintiff’s motion to strike as to twenty-one of the twenty-two special defenses; it denied it only as to the eighth special defense, which asserts that the lien created by General Statutes § 38-325 (b) is limited to $5000. The court reasoned that, because it could not at that point conclude that this defense was insufficient to defeat that part of the plaintiff’s claim in excess of $5000, the motion to strike should be denied as to that special defense.

The plaintiff thereupon moved for summary judgment in the amount of $11,989.02 against both Della Ghelfa and Rozbicki, supplying affidavits and documents in support of all the facts alleged in its complaint. Rozbicki filed an objection to the motion, but filed no affidavit or other document in opposition to it. Della Ghelfa filed nothing in response to the motion. The court, Satter, J., granted the plaintiff’s motion for summary judgment against both Della Ghelfa and Rozbicki in the amount of $5000 only. The plaintiff appealed, claiming that the court erred in limiting its recovery to $5000. Rozbicki cross appealed, claiming error in the denial of his motion to strike the plaintiff’s complaint, in the granting of the plaintiff’s motion to strike all but one of his twenty-two special defenses, and in the granting of the plaintiff’s motion for summary judgment.

I

The Appeal

The plaintiff’s appeal requires us to consider the relationship among several sections of our No-Fault Motor Vehicle Insurance Act (the act). General Statutes §§ 38-319 through 38-351. These are §§ 38-319 (k), 38-320 (a) and (d), 38-325 (b), and 38-330.

The trial court, Satter, J., held, as the defendants urge us to hold, that the phrase “basic reparations benefits,” as used in § 38-325 (b), is limited to a maximum of $5000, by virtue of § 38-320 (a) and (d), and that any benefits paid by an insurer beyond that amount are “added reparations . . . benefits” under § 38-330, which are not recoverable by the insurer under § 38-325 (b). The plaintiff argues that those benefits are not limited by the dollar amounts contained in § 38-320 (a) and (d) and are fully recoverable under § 38-325 (b). Although the defendants’ argument has some appeal based solely on the language of §§ 38-320 (a) and (d) and 38-330, we agree with the plaintiff. On the basis of the language of the various statutory sections, the history and purposes of the act, and the way in which the phrase “basic reparations benefits” is used throughout the act, we hold that where the insurer has paid benefits for economic loss in excess of $5000 pursuant to increased coverage which it was required to provide by a regulation of the insurance commissioner, the entire amount of those benefits paid constitutes “basic reparations benefits” and is subject to the reimbursement and lien rights created by § 38-325 (b).

A

“The objective of statutory construction is to give effect to the intended purpose of the legislature.” State v. Delafose, 185 Conn. 517, 521, 441 A.2d 158 (1981). Although it is axiomatic that, where the statutory language is clear and unambiguous, construction of the statute by reference to its history and purpose is unnecessary; Manchester v. Manchester Police Union, 3 Conn. App. 1, 6, 484 A.2d 455 (1984); that axiom only applies in full force “[wjhere . . . the language of a statute is . . . absolutely clear” on its face and where no ambiguity is disclosed by reference to its background. (Emphasis in original.) Anderson v. Ludgin, 175 Conn. 545, 552-54, 400 A.2d 712 (1978). Where such absolute clarity is lacking and such an ambiguity is disclosed, the court must look to the language of the statute, its history, purpose, objective and underlying policy. Id. What appears to be clear statutory language should not be read to arrive at an “ambiguous or unreasonable result” or to “defeat a legislative intent which becomes evident when the statute is read in the light of its history and purpose.” State v. Delafose, supra, 522. Statutes should be considered as a whole, reconciling their separate parts so that a reasonable overall interpretation is achieved. Dukes v. Durante, 192 Conn. 207, 214, 471 A.2d 1368 (1984). Furthermore, the meaning of a particular phrase in a statute is to be determined by reference to the use of that phrase in other parts of the same statute. Doe v. Institute of Living, Inc., 175 Conn. 49, 57, 392 A.2d 491 (1978); Sutherland, Statutory Construction (4th Ed.) § 46.05. A meaning should not be ascribed to it which would render the meaning of those other uses difficult or bizarre; State v. Campbell, 180 Conn. 557, 563, 429 A.2d 960 (1980); Connecticut Natural Gas Corporation v. DPUC, 1 Conn. App. 1, 4, 467 A.2d 679 (1983); and it must be construed with common sense. State v. Privitera, 1 Conn. App. 709, 721, 476 A.2d 605 (1984).

Here, that absolute clarity is lacking and that ambiguity is disclosed. Although § 38-320 (a) and (d) appear on their face to limit basic reparations benefits to $5000, and although § 38-330 on its face draws a distinction between basic reparations benefits and added reparations benefits, neither the definition of basic reparations benefits; see § 38-319 (k), footnote 2, supra; nor the reimbursement mechanism of § 38-325 (b); see footnote 5, supra; contains such a monetary limitation. The definition is cast in terms of the kind of coverage, not its amount. Likewise, § 38-325 (b) provides for reimbursement “to the extent that . . . basic reparations benefits have been paid. . . We cannot conclude, as the defendants would have us do, that where the insurer has paid benefits for economic loss beyond that amount, the question of whether basic reparations benefits is limited to $5000 can confidently be answered solely by examining the language of §§ 38-320 (a) and (d) and 38-330, and by ignoring the other language of the act, its history, purpose, and objective. We turn, therefore, to those other sources of enlightenment.

B

It is useful to begin with the legislative history of the act, including the subsequent regulatory action of the insurance commissioner in implementing it. There is no question that, when it was enacted in 1972, as Public Acts 1972, No. 273, the act provided only for a package of basic reparations benefits of $5000. This is clear, not only from its language but from a perusal of its legislative history. See generally 15 H. R. Proc., Pt. 5,1972 Sess., pp. 1843-53 (remarks of Rep. Carrozzella); 15 S. Proc., Pt. 5,1972 Sess., pp. 2143-49, 2161 (remarks of Sen. Jackson). At that time, then, the statute contemplated basic reparations benefits of no more than $5000; that amount was all that insurers were obligated to provide and all that was available to insureds.

Contained within the act, however, was what is now § 38-330. See footnote 6, supra. That section looked to the future of the act and the solutions it offered, by providing that insurers may offer added reparations benefits, including coverage of losses otherwise excluded by the statutory limits on such items as funeral and burial expenses, work loss and survivor’s benefits, and by giving the insurance commissioner specific power to “adopt rules requiring that specific optional added reparations coverages be offered by insurers writing basic reparations insurance.” (Emphasis added.) Comparison of this section with the proposals advanced by Professors Keeton and O’Connell, in the seminal published work on this subject which served as the basic working model for this and other acts throughout the nation; Gentile v. Altermatt, 169 Conn. 267, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct 763, 46 L. Ed. 2d 631 (1976); Hartford Accident & Indemnity Co. v. Holder, 37 Conn. Sup. 723, 436 A.2d 308 (1981); makes clear that the theoretical source of this section was what Keeton and O’Connell also called “added protection benefits,” and that those benefits were contemplated to include coverage in increased amounts beyond the standard minimum limits provided by the no-fault statute. Keeton & O’Connell, Basic Protection for the Traffic Victim pp. 8, 311, 422.

Consistent with § 38-330, effective October 16,1973, the commissioner adopted § 38-330-1 of the regulations of Connecticut state agencies. That regulation, which has the force of a statute; Roy v. Centennial Ins. Co., 171 Conn. 463, 473, 370 A.2d 1011 (1976); required insurers writing basic reparations insurance to offer optional increased amounts of coverages of $10,000, $15,000 and $25,000 as basic reparations and added reparations. The regulation ambiguously refers to such coverage in both ways. See Regs., Conn. State Agencies § 38-330-1. It is undisputed that this regulation required the plaintiff to offer to Della Ghelfa the increased coverage which he purchased, and under which the plaintiff paid him $11,989.02. Thus, the plaintiff paid Della Ghelfa benefits of a kind defined by § 38-319 (k), in an amount in excess of the limit stated in § 38-320 (a) and (d), but that excess was required by the regulation which had statutory force. Roy v. Centennial Ins. Co., supra.

C

“The basic purposes of the act are to guarantee prompt payment of benefits to injured covered parties; to reduce insurance premiums and increase efficiency in the reparations system; to improve on the fault system’s reliance on litigation based on fault under which large claims were underpaid and minor claims overpaid; to reduce extreme pressure on court dockets; to provide that insurers provide coverage at reasonable rates; and to reduce unreasonably high insurance premium levels and pass on to the consumer the benefits of increased administrative efficiency provided by the no-fault system. Gentile v. Altermatt, 169 Conn. 267, 290-92, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976). See generally, Keeton & O’Connell, Basic Protection for the Traffic Victim, A Blueprint for Reforming Automobile Insurance.” Hartford Accident & Indemnity Co. v. Holder, supra, 731. A critical part of the act, flowing from its purposes of guaranteeing prompt payment of claims and increasing efficiency in the reparations system, is the requirement of periodic and prompt payments to insureds as their losses occur. Keeton & O’Connell, supra, 6-7. Another critical part of the act, flowing from its purpose to reduce insurance premiums, is that provision limiting recovery to net economic loss by subtracting benefits from certain other sources. Id., 7-8, 400-401.

D

With these purposes in mind, we examine the use of the term, “basic reparations benefits,” in other parts of the act. That examination convinces us that basic reparations benefits include, not only the first $5000 of coverage, but the excess coverage provided under the regulation as well. This construction of “basic reparations benefits,” which enables the insurer to recover, in appropriate cases, the full amount of the benefits paid, would be consistent with the basic purposes of the act. To hold otherwise would be to frustrate important purposes of the act and to render the meaning of those other uses difficult, bizarre or lacking in common sense.

Sections 38-333 (a) and (b) and 38-334 (a) effectuate the purpose of guaranteeing prompt and periodic payment of claims as losses occur, thus increasing the efficiency of the reparations systems. These sections, in general, require that “[b]asic reparations benefits are payable as economic loss accrues” and must be paid within fifteen days thereafter; General Statutes § 38-333 (a); that overdue payments bear interest at 12 percent per year; General Statutes § 38-333 (b); and that an insured may recover attorney’s fees if he sues the insurer for overdue benefits. General Statutes § 38-334 (a). The defendants’ position, that “basic reparations benefits” only refers to the first $5000 of benefits paid, would mean that those rights of the insured and obligations of the insurer would not apply to cases, like this one, where the insured’s losses are heavy. This would, in turn, frustrate those basic purposes of the act in those serious cases where the insured had anticipated a need for and purchased increased coverage.

Likewise, § 38-333 (c) effectuates the purpose of reducing insurance premiums, by eliminating certain overlapping benefits from other sources. It provides that “[i]n determining the amount of basic reparations benefits payable for economic loss,” workers’ compensation and Medicare benefits “shall be deducted from the amount otherwise payable.” This purpose would be frustrated to the extent that these other benefits were not deducted from the amount of the basic reparations benefits payable beyond the first $5000.

Furthermore, § 38-321 is that part of the act defining the set of root obligations of the insurer to “pay basic reparations benefits,” and the root limitations on those obligations. It would lead to difficult and bizarre results, and defy common sense, if those obligations and limitations only apply to the first $5000 of coverage and not to the excess, sold by the insurer and purchased by the insured for the same purposes as those served by the first $5000.

Finally, we note that “basic reparations benefits” reimburses persons for “economic loss.” General Statutes § 38-319 (k). “Economic loss” includes loss, resulting from the insured’s death, defined as “survivor’s loss,” incurred by the insured’s “dependent survivors.” General Statutes § 38-319 (b). The “dependent survivors” are statutorily defined as the surviving spouse living in his household and others qualified as dependents for federal income tax purposes. Id. These survivors are not necessarily congruent with those who would take from the insured’s estate, either by intestacy or under his will. It would make little statutory sense for the legislature to have meant that only the first $5000 of benefits purchased by the insured would be payable under the act to his dependent survivors. Cf. General Statutes §§ 38-322, 38-328 (c), 38-337 and 38-343 (other sections which would, if interpreted as the defendants urge, be rendered difficult, bizarre or lacking in common sense).

II

The Cross Appeal

A

In his cross appeal, Rozbicki first claims that the trial court erred in denying his motion to strike the second count of the plaintiff’s complaint. We agree with the trial court that the allegations of the second count, taken favorably to the plaintiff and considered in the light of the facts provable under them; Amodio v. Cunningham, 182 Conn. 80, 82-83, 438 A.2d 6 (1980); state causes of action both for violation of the plaintiffs lien rights and conversion by Rozbicki. In doing so, we agree, as did the trial court, with the reasoning of the Appellate Session of the Superior Court in Unigard Ins. Co. v. Tremont, 37 Conn. Sup. 596, 430 A.2d 30 (1981).

The legislature has since amended § 38-325 (b) to provide that “no such lien shall attach until such time as the proceeds of such recovery are in the possession and control of such claimant.” Public Acts 1981, No. 81-386; General Statutes (Rev. to 1983) § 38-325 (b). That amendment, however, is not retroactive to the facts of this case. See footnote 5, supra.

The fact that Rozbicki may have personally benefited only from that part of the proceeds of the recovery equal to his fee does not affect this result. By improperly disbursing the funds, thus violating the plaintiffs rights to their entirety and assisting in the conversion of their entirety, he became jointly and severally liable for that entirety. See Lamb v. Peek, 183 Conn. 470, 472, 441 A.2d 14 (1981).

B

Rozbicki next claims that the trial court erred in striking all but one of his twenty-two special defenses. Before addressing this claim, we are constrained to note our agreement with the trial court, which “consider[ed] the filing of 22 special defenses frivolous pleadings since only one appears to have been legitimate. As is evident ... an inordinate amount of time has been consumed by the court in connection with the analysis of all these defenses. A lesson in succinct[ness] in pleading appears to be in order.” Indeed, on appeal Rozbicki was able to discuss all of these defenses in his brief in ten, rather than twenty-two, groups. It was incumbent on him to think about them before, rather than after, pleading them, so as to avoid undue attention both from his adversary and the court. His counsel would have been well-advised to keep in mind the requirement that “[e]ach pleading shall contain a plain and concise statement of the material facts on which the pleading relies” (emphasis added); Practice Book § 108; and the admonition of DR 7-102 (A) (1) of the Code of Professional Responsibility that, “[i]n his representation of a client, a lawyer shall not . . . assert a position, conduct a defense, . . . or take other action on behalf of his client when . . . it is obvious that such action would serve merely to harass . . . another.” See also State v. Anonymous (1974-5), 31 Conn. Sup. 179, 181, 326 A.2d 837 (1974) (Code of Professional Responsibility bears on the limits to which counsel may wander in his presentation of his client’s position).

Rozbicki’s eighth special defense, which asserts that the plaintiff’s reimbursement rights are limited to $5000, was sustained by the trial court’s ruling on the plaintiff’s motion for summary judgment. Thus, that ruling was part of the plaintiff’s appeal, and is not properly part of Rozbicki’s cross appeal. We therefore confine our discussion here to Rozbicki’s remaining twenty-one special defenses. Although in his brief he narrowed these twenty-one into nine groups, exclusive of the eighth special defense, we find that they fall into five groups.

1

Rozbicki’s nineteenth special defense asserts that the plaintiff waived any lien rights it may have had against him by virtue of a certain letter to him in which it elected to seek satisfaction of its lien from Della Ghelfa, by failing to make demand on him, by failing to give him notice that it sought to enforce its lien against him personally, and by failing to enforce its claim before he and Della Ghelfa cashed the Nationwide draft payable to them. Waiver is a question of fact for the trier. Loda v. H.K. Sargeant & Assoc., Inc., 188 Conn. 69, 76, 448 A.2d 812 (1982). It was error for the court to conclude that these allegations could not amount to a special defense.

While we note that the material adduced by the plaintiff on its motion for summary judgment casts some doubt on whether Rozbicki could factually sustain this special defense, we also note that at that point of the proceedings this special defense had been ruled out of the case. Thus, Rozbicki was unable to present whatever other material he might have in support of this special defense.

2

Rozbicki’s seventeenth and eighteenth special defenses assert, respectively, that the plaintiff was guilty of laches and that it waived its lien rights, by failing to impose its lien against Nationwide. The trial court did not err in striking these special defenses.

Although both waiver and laches are questions of fact, it is clear that the common legal basis of these special defenses is that the plaintiff could have, but did not, collect on its lien rights from Nationwide. We find nothing in § 38-325 (b), as then in effect, to support this claim. See footnote 5, supra. Until the proceeds of the judgment were actually paid to Della Ghelfa and Rozbicki, his attorney and agent, it cannot be said that he had ‘‘recovered] damages,” that the plaintiff was entitled to reimbursement “from the claimant,” or that there was any “claimant’s recovery” on which a lien could be impressed. § 38-325 (b). Thus, the plaintiff had no basis to support a claim against Nationwide.

3

The ninth special defense asserts that the plaintiff has no right to reimbursement from the recovery from the Seitzes because such right is contrary to the public policy and state law prohibiting assignment of interests in personal injury claims. The short answer to this is that § 38-325 (b) has, in those cases covered by its terms, clearly declared this state’s law and public policy in favor of such reimbursement. See Hartford Accident & Indemnity Co. v. Holder, supra.

4

The twentieth, twenty-first and twenty-second special defenses raise various vaguely asserted constitutional claims, based on federal and state due process and equal protection grounds, none of which has merit. Although the allegations are largely conclusory and thus unilluminating, we glean from Rozbicki’s brief that their thrust is that the lien rights created by § 38-325 (b) run afoul of the due process notice and hearing rights articulated in Kukanskis v. Griffith, 180 Conn. 501, 430 A.2d 21 (1980), and Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 168 Conn. 371, 362 A.2d 778, vacated, 423 U.S. 809, 96 S. Ct. 20, 46 L. Ed. 2d 29 (1975), on remand, 170 Conn. 155, 365 A.2d 393, cert. denied, 429 U.S. 889, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976).

The short answer to this claim of Rozbicki is that he has no standing to assert it. It is axiomatic that due process rights are personal, and cannot be asserted vicariously. Shaskan v. Waltham Industries Corporation, 168 Conn. 43, 49, 357 A.2d 472 (1975); see Silverman v. St. Joseph's Hospital, 168 Conn. 160, 175-77, 363 A.2d 22 (1975). If there is to be an adjudication as to whether § 38-325 (b) unconstitutionally imposes a lien against someone’s recovery of damages, that claim must be made by the person entitled to that recovery. The recovery here belonged to Della Ghelfa, not Rozbicki. Rozbicki’s liability to the plaintiff was as Della Ghelfa’s attorney and agent, and as a joint tortfeasor, not as Della Ghelfa’s alter ego owner of the fund. Thus the trial court did not err in striking these special defenses of Rozbicki.

5

The remaining fourteen special defenses, namely the first through seventh and tenth through sixteenth, all assert in various ways the basic claim that, because Rozbicki was Della Ghelfa’s attorney, he had no duty or authority to avoid disbursing the proceeds of the judgment. It would serve little purpose to discuss these various claims at length. Suffice it to say that we conclude that they are all disposed of by the reasoning of Unigard Ins. Co. v. Tremont, 37 Conn. Sup. 596, 430 A.2d 30 (1981), which we have already indicated we adopt.

Ill

Conclusion

We have found error in part on the plaintiff’s appeal and have determined that the plaintiff’s motion for summary judgment should have been granted to the full extent of its claim. We have also, however, found error in part on Rozbicki’s cross appeal in that his nineteenth special defense should not have been stricken. If he is successful on remand in establishing that special defense, the judgment for the plaintiff in the amount of $11,989.02 would be precluded. Thus, the only issue left for determination on remand is whether Rozbicki establishes that special defense.

There is error in part on the appeal and on the cross appeal, the judgment is set aside and the case is remanded with direction to render judgment for the plaintiff in the amount of $11,989.02 against the defendant Della Ghelfa, and against the defendant Rozbicki unless he establishes his nineteenth special defense in a hearing limited to that issue.

In this opinion the other judges concurred.

       This appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c).

       General Statutes § 38-319 (k) provides: “ ‘Basie reparations benefits’ are benefits reimbursing persons suffering economic loss through injury arising out of the ownership, maintenance or use of a private passenger motor vehicle as provided in this chapter.”

       General Statutes § 38-320 (a) provides: “The owner’s insurer is liable to pay, without regard to fault, basic reparations benefits under a uniform separately identifiable coverage of five thousand dollars per person per accident for economic loss resulting from injury arising out of the ownership, maintenance or use of a private passenger motor vehicle, subject to the provisions of this chapter.”

       General Statutes § 38-320 (d) provides: “The maximum amount of basic reparations benefits payable for all economic loss resulting from injury to any one person as the result of any one accident shall not exceed five thousand dollars per person regardless of the number of insurers involved. If two or more insurers are liable to pay benefits for such an injury, any insurer paying the benefits due shall be entitled to recover from each of the other insurers an equitable pro rata share of the benefits paid and expenses incurred in processing the claim.”

       General Statutes (Rev. to 1979) § 38-325 (b), as it existed at the time of the facts of this case, provided: “Whenever a person who receives basic reparations benefits for an injury recovers damages from the owner, registrant, operator or occupant of a private passenger motor vehicle with respect to which security has been provided under this chapter or from a person or organization legally responsible for his acts or omissions, the insurer is entitled to reimbursement from the claimant to the extent that said basic reparations benefits have been paid and the insurer shall have a lien on the claimant’s recovery to such extent.”
      This section has since been amended. One of those amendments, discussed infra, deals with some of the issues raised by Rozbicki’s cross appeal but is not retroactively applicable to this case. See Norfolk & Dedham Mutual Fire Ins. Co. v. Sagnella, 37 Conn. Sup. 806, 437 A.2d 150 (1981).

       General Statutes § 38-330 provides: “Basic reparations insurers may offer optional added reparations coverages providing other benefits as compensation for injury or harm arising from the ownership, maintenance or use of a private passenger motor vehicle, including loss excluded by limits on funeral and burial expenses, and loss excluded by limits on work loss and survivor’s loss. The insurance commissioner may adopt rules requiring that specific optional added reparations coverages be offered by insurers writing basic reparations insurance. Added reparations coverages are not limited to injuries occurring within this state, but may be limited to injuries occurring within the United States of America, its territories and possessions and Canada.”

       The social problems leading to the act and its approach to the solutions of those problems have been previously outlined and need not be repeated here. See Gentile v. Altermatt, 169 Conn. 267, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976); Hartford Accident & Indemnity Co. v. Holder, 37 Conn. Sup. 723, 436 A.2d 308 (1981).

       General Statutes § 38-321 provides: “(a) Except as otherwise provided in this section, the insurer of the owner of a private passenger motor vehicle shall pay basic reparations benefits for injury sustained by (1) a basic reparations insured while occupying any private passenger motor vehicle or while a pedestrian injured by physical contact with a motor vehicle of any type, or (2) any other person while occupying the owner’s private passenger motor vehicle or while a pedestrian injured by physical contact with such vehicle.
      “(b) The insurer of the owner is not liable to pay such benefits for injury sustained by any other person who is himself the owner of a motor vehicle with respect to which security is required under this chapter.
      “(c) The insurer of the owner is not liable to pay such benefits to a pedestrian other than a basic reparations insured if the accident occurs outside this state, or to any person otherwise entitled to benefits if the accident occurs outside the United States of America, its territories or possessions or Canada.
      “(d) The insurer of the owner is not liable to pay such benefits to a person other than a basic reparations insured to the extent that he is entitled to direct benefits without regard to fault for economic loss from the insurer of any other motor vehicle.”

       Della Ghelfa did not raise in the trial court the claims on which Rozbicki’s cross appeal is based, nor did he join in the cross appeal. Thus, the benefits and burdens of our rulings on these issues inure only to Rozbicki.

       We reject the plaintiffs initial procedural argument that Rozbicki waived the right to raise this claim on appeal by pleading in response to the complaint after the denial of his motion to strike. The plaintiff confuses the waiver which takes place when a party pleads over after his pleading has been stricken; see Practice Book § 157; Royce v. Westport, 183 Conn. 177, 178-79, 439 A.2d 298 (1981); with the situation here where, after his motion to strike the second count was denied, Rozbicki was required to plead in response to it by Practice Book § 112.

       We reject the plaintiffs procedural argument here that Rozbicki waived his right to challenge the granting of the plaintiffs motion to strike his special defenses, by failing to file a notice of appeal under Practice Book § 3001. That section gives aparty the option to forego an immediate appeal and reserve his appeal, “until the final judgment is rendered which disposes of the cause for all purposes and as respects all parties . . .” in cases in which there is “[a] judgment disposing of certain of the issues between the parties or of part or all of the issues between some of them in such a man

        ner as to be final but not terminating the litigation . . . .” (Emphasis added.) The granting of a motion to strike a special defense is not a “judgment disposing of certain of the issues ... in such a manner as to be final Breen v. Phelps, 186 Conn. 86, 90, 439 A.2d 1066 (1982). Thus, Practice Book § 3001 is inapplicable.


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    Police Department of the City of Ansonia v. Salvatore Giordano
    (2467)
    Dupont, C.P.J., Spallone, and Daly, Js.
    Submitted on briefs January 17
    decision released March 26, 1985

      Kevin J. Maher filed a brief for the appellant (plaintiff).

      Barbara J. Sheedy filed a brief for the appellee (defendant).
   Daly, J.

The plaintiff instituted a subrogation action to recover for injuries sustained by one of its police officers. From the granting of the defendant’s motion to dismiss, the plaintiff has appealed.

By a complaint dated January 11,1983, the plaintiff alleges that it was the employer of Officer Daniel G. Carr, who, on or about November 12,1981, while investigating a motor vehicle accident, was assaulted by the defendant. The plaintiff claims that it has been obligated to expend certain sums on behalf of Carr under the terms of the Workers’ Compensation Act and is attempting to recover for same.

Carr instituted an action against the defendant on July 29,1982, in the judicial district of Ansonia-Milford. The plaintiff had received notice of that action on October 7,1982, but failed to intervene therein. After the present matter was transferred and consolidated with Carr’s action, the defendant filed a motion to dismiss for the plaintiff’s failure to comply with General Statutes § 31-293.

General Statutes § 31-293 provides in part that “such other may join as a party plaintiff in such action within thirty days after such notification, and, if such other fails to join as a party plaintiff, his right of action against such third person shall abate.” The trial court granted the motion to dismiss for failure to abide by § 31-293.

“Where a cause of action has been created by statute, strict compliance with the prescribed procedure has been deemed essential. Main v. North Stonington, 127 Conn. 711, 712 [16 A.2d 356 (1940)]. ‘The general rule is that where a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right—it is a limitation of the liability itself as created, and not of the remedy alone.’ DeMartino v. Siemon, 90 Conn. 527, 528 [97 A. 765 (1916)].” Norwalk v. Van Dyke, 33 Conn. Sup. 661, 664, 366 A.2d 554 (1976).

“General Statutes § 31-293 grants to an employer who has paid workers’ compensation a right to join as a party plaintiff in actions by employees against third party tortfeasors; Robinson v. Faulkner, 163 Conn. 365, 377, 306 A.2d 857 (1972); provided that the right is exercised in a timely fashion. Olszewski v. State Employees’ Retirement Commission, 144 Conn. 322, 325, 130 A.2d 801 (1957).” Ricard v. Stanadyne, Inc., 181 Conn. 321, 323, 435 A.2d 352 (1980).

It is conceded that the plaintiff failed to file its application to intervene within thirty days of its receipt of notice of the institution of Carr’s action. By such failure, the plaintiff’s independent derivative action against the defendant; Stavola v. Palmer, 136 Conn. 670, 678, 73 A.2d 831 (1950); was abated. General Statutes § 31-293; Olszewski v. State Employees’ Retirement Commission, supra. In these circumstances, the plaintiff also lost its right to intervene in Carr’s action. Hence, the granting of the motion to dismiss was proper. Ricard v. Stanadyne, Inc., supra, 323-24.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 31-293 provides in pertinent part: “When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of such injured employee against such other person, but such injured employee may proceed at law against such person to recover damages for such injury; and any employer having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such other person to recover any amount that he has paid or has become obligated to pay as compensation to such injured employee. If either such employee or such employer brings such action against such third person, he shall forthwith notify the other, in writing, by personal presentation or by registered or certified mail, of such fact and of the name of the court to which the writ is returnable, and such other may join as a party plaintiff in such action within thirty days after such notification, and, if such other fails to join as a party plaintiff, his right of action against such third person shall abate.”


author: Spallone, J.

text:
    Margot A. Bruneau v. Robert J. Bruneau
    (3351)
    Borden, Spallone and Daly, Js.
    Argued December 14, 1984
    decision released April 2, 1985

      Edward J. Cooke, Jr., for the appellant (plaintiff).

      C. IanMcLachlan, with whom was William T. Fitzmaurice, for the appellee (defendant).
   Spallone, J.

The parties were married in 1942. In 1965, the defendant petitioned for a divorce in the First Civil Court of the District of Bravos, Ciudad Juarez, State of Chihuahua, Republic of Mexico. The defendant appeared personally in the Mexican court. The plaintiff appeared by counsel and consented to jurisdiction. A divorce decree was rendered in the Mexican court on October 28,1965. The decree incorporated a separation agreement executed by the parties on July 1, 1965, which provided for the custody and support of their minor child, support and maintenance of the plaintiff, and the division of the marital property.

On January 27,1984, the plaintiff brought this action to dissolve her marriage to the defendant. The defendant moved to dismiss on the ground that the trial court lacked jurisdiction because the parties were already divorced by the Mexican decree. In this appeal by the plaintiff from the granting of that motion, the central issue is whether the action of the trial court was correct in light of the Mexican divorce decree.

Judgments rendered by courts in foreign countries are recognized in the United States under the principle of comity. When so recognized, a decree of divorce granted in a foreign country will be given full force and effect not only as to the determination of the parties’ status, but also with respect to alimony and child support. Litvaitis v. Litvaitis, 162 Conn. 540, 544-45, 295 A.2d 519 (1972). An important exception to the principle of comity is where the foreign court lacked jurisdiction. The courts of this country will not generally recognize a judgment of divorce granted by a court of another country “unless, by the standards of the jurisdiction in which recognition is sought, at least one of the spouses was a good faith domiciliary in the foreign nation at the time the decree was rendered.” Id., 546.

The plaintiff argues under the rule set forth in Litvaitis v. Litvaitis, supra, that because neither she nor the defendant was domiciled in Mexico at the time the decree was rendered, the trial court erred in recognizing the foreign judgment of divorce. The defendant contends that a more liberal position should be adopted as to bilateral* Mexican decrees as long as Mexican jurisdictional standards have been met. He also argues that the equities of this case dictate that the Mexican decree be afforded recognition.

In Litvaitis v. Litvaitis, supra, the marriage between the parties was dissolved in Mexico upon a petition filed by the defendant husband. He remarried after obtaining the divorce and thereafter ceased making support payments to the plaintiff. In an action by the plaintiff for past support and for an order requiring the payment of future support, the trial court found that the Mexican divorce was invalid. In affirming the trial court’s decision, the Supreme Court noted that neither party had a domicile in Mexico and that the plaintiff never submitted herself to the jurisdiction of the Mexican court. Id., 546. While the Supreme Court did not rule on the basis of the equities of the case, the equities were squarely before it when it found that the trial court’s conclusion “that the defendant voluntarily abandoned the plaintiff because he wanted to be free and could not accept responsibility” was amply supported by the evidence. Id., 547.

The defendant distinguishes Litvaitis from this case because the Mexican divorce in Litvaitis was obtained ex parte. He urges reliance on the reasoning of Baker v. Baker, 39 Conn. Sup. 66, 468 A.2d 944 (1983). In Baker, the plaintiff petitioned for and obtained a dissolution decree in a Mexican proceeding in which she appeared personally and the defendant appeared by counsel. After the Mexican judgment was rendered, both the plaintiff and the defendant married other individuals. When the plaintiff’s second marriage proved unsuccessful, she brought a dissolution action in Connecticut. The Superior Court, after acknowledging the general rule barring the recognition of divorce decrees rendered in a foreign country unless the jurisdictional requirements of the recognizing state are satisfied, held that practical recognition should be given the Mexican decree because the equities and facts of the case mandated an exception to the general rule. Baker v. Baker, supra, 73.

The concept of “practical” recognition of a divorce decree rendered in a foreign nation where neither spouse is domiciled has been recognized by a number of courts. See, e.g., Mayer v. Mayer, 66 N.C. App. 522, 311 S.E.2d 659 (1984); see also annot., 13 A.L.R.3d 1419, § 8 (a) and cases cited therein. “[Practical recognition may be accorded such decrees by estoppel, laches, unclean hands, or similar equitable doctrine under which the party attacking the decree may be effectively barred from securing a judgment of invalidity.” Annot., 13 A.L.R.3d 1419, 1452. Thus, a party may be precluded from attacking a foreign divorce decree if such an attack would be inequitable under the circumstances. Scherer v. Scherer, 405 N.E.2d 40, 44 (Ind. App. 1980). Moreover, in a case involving a Mexican divorce, our Supreme Court has recently recognized that “out-of-state divorces are [now] both less likely and less opprobrious,” and that, therefore, such divorces should not lightly be overturned where “the parties had intended to channel the dissolution of their marriage in a legitimate rather than in an illegitimate fashion.” Hayes v. Beresford, 184 Conn. 555, 567, 440 A.2d 224 (1981); see also Lavigne v. Lavigne, 3 Conn. App. 423, 488 A.2d 1290 (1985).

The rule precluding a person from attacking the validity of a foreign divorce if, under the circumstances, it would be inequitable to do so “is not limited to situations of what might be termed ‘true estoppel’ where one party induces another to rely to his damage upon certain representations as to the facts of the case.” 1 Restatement (Second), Conflict of Laws § 74, comment b. “[I]f the person attacking the divorce is, in doing so, taking a position inconsistent with his past conduct, or if the parties to the action have relied upon the divorce, and if, in addition, holding the divorce invalid will unset relationships or expectations formed in reliance upon the divorce, then estoppel will preclude calling the divorce in question.” Clark, “Estoppel Against Jurisdictional Attack on Decrees of Divorce,” 70 Yale L. J. 45, 57 (1960). Thus, if one party has accepted benefits under the original decree or waited an unreasonably long time before attacking it, an invalid decree will be held immune from attack, particularly if the other party has remarried in the meantime. 1 Restatement (Second), Conflict of Laws § 74, comment b. Consequently, even if a divorce decree rendered in a foreign country is jurisdictionally invalid under the general rule set forth in Litvaitis, the judgment may be permitted practical recognition. Baker v. Baker, supra. We find that this is such a case.

As we have noted, the defendant obtained the Mexican decree on October 28, 1965. The defendant remarried in reliance on that decree. The plaintiff did not. Nineteen years after the Mexican judgment was rendered, the plaintiff brought this action because of the defendant’s alleged failure to observe various financial obligations imposed by the agreement which was incorporated into the decree. The plaintiff contends that she is dependent upon the benefits she was granted pursuant to the decree and that she chose to appear by counsel in Mexico upon the expectation that she would be awarded such benefits.

While we acknowledge the possibility of the plaintiff’s genuine need, we nevertheless conclude that her acceptance of benefits for nineteen years under the decree which she participated in obtaining estops her from now attacking the validity of that decree. 1 Restatement (Second), Conflict of Laws § 74. Under the circumstances, to permit the plaintiff to challenge the validity of the decree would amount to allowing her to take advantage of a fraud in which she participated by being one of the parties to the Mexican proceeding. See Webb v. Webb, 461 S.W.2d 204, 206 (Tex. Civ. App. 1970); see also Smith v. United States, 277 F. Sup. 583, 589-90 (M.D. Fla. 1967). We note that the result we have reached does not leave the plaintiff without recourse since she may sue to enforce the separation agreement. Hayes v. Beresford, supra, 566.

Having examined the equities of this case, we hold that the trial court was correct in according the Mexican decree practical recognition under the principles discussed above.

There is no error.

In this opinion the other judges concurred.

       The plaintiff has also raised three additional issues in which she claims that the trial court erred in dismissing the action without permitting her to present evidence as to the equities of the case or the domicile of the parties at the time of the Mexican dissolution decree. Having examined these issues, we decline to consider them because no legal arguments were formulated thereunder. McGaffin v. Roberts, 193 Conn. 393, 399 n.6, 479 A.2d 176 (1984). We note, however, that the transcript indicates that the plaintiffs attorney never expressed an interest in presenting evidence at the hearing and, in fact, stated that the question before the court was “purely a legal question.” When the court stated that it would “probably, but not necessarily” (emphasis added) request an evidentiary hearing, the plaintiff took no exception to this limitation of her opportunity to present evidence. Thus, even if these issues were properly briefed, nothing in the record of this case warrants our departure from the rule that precludes us from considering a claim unless it was distinctly raised at trial or arose subsequent to the trial. Practice Book § 3063; Chaplin v. Balkus, 189 Conn. 445, 447, 456 A.2d 286 (1983); cf. State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); see French v. French, 135 Conn. 542, 549, 66 A.2d 714 (1949).

       “Bilateral divorces are based on the physical presence of both spouses in the divorcing nation, or physical presence of the petitioner and the voluntary‘appearance’by the defendant through an attorney. . . . An ex parte divorce is based on the petitioner’s physical presence in the foreign nation, with notice or constructive service given to the absent defendant.” (Citations omitted.) Swisher, “Foreign Migratory Divorces: A Reappraisal,” 21 J. Fam. L. 9, 25 n.71-72 (1982).

       The plaintiff, in her statement of issues on appeal, virtually concedes such participation: “4. May the parties to an internationally foreign divorce case fabricate jurisdiction by agreement, where neither party is a domiciliary of a foreign country and both parties are domiciled in Connecticut?” (Emphasis added.)


author: Dupont, C.P. J.

text:
    State of Connecticut v. Fred Kuritz
    (2684)
    Dupont, C.P.J., Borden and Daly, Js.
    Argued January 11
    decision released April 2, 1985

      Erskine D. McIntosh, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Susann E. Gill, deputy assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and Timothy J. Liston and John M. Massameno, assistant state’s attorneys, for the appellee (state).
   Dupont, C.P. J.

After a jury trial, the defendant was convicted of the crime of injury or risk of injury to a minor child, in violation of General Statutes § 53-21. The sole issue of this appeal is whether the trial court erred in refusing to preclude the state from introducing into evidence a prior felony conviction of the defendant for the purpose of impeaching his credibility as a witness. The prior conviction was for robbery with violence and occurred sixteen years prior to this jury trial.

General Statutes § 52-145 (b) provides that a person’s prior conviction of a crime may be shown for the purpose of affecting his credibility. The statute has been interpreted to apply solely to convictions of crimes where the punishment may be in excess of one year but even if there have been such convictions, the statute does not make them per se admissible. State v. Braswell, 194 Conn. 297, 307, 481 A.2d 413 (1984); State v. Geyer, 194 Conn. 1, 11, 480 A.2d 489 (1984). Rather, the admissibility of such convictions is subject to the trial court’s discretion. State v. Geyer, supra. In exercising that discretion, the trial court must determine whether the prejudicial effect of their admission far outweighs their probative value. State v. Braswell, supra.

Appellate review of a trial court’s admission into evidence of a prior conviction of a crime for the purpose of impeachment of a defendant consists of a tripartite analysis. An appellate court must examine the extent, if any, of the prejudicial impact on the defendant’s cause, the magnitude of the prior crime as it impacts on the truthfulness of the defendant, and the length of time between the conviction and the admission into evidence of the prior conviction. State v. Geyer, supra, 11. These three guidelines, when used as the litmus paper of admissibility, obviously overlap.

A prior conviction of robbery with violence is inextricably interwoven with the crime of larceny and implies a lack of veracity. It, therefore, is directly relevant to a determination of the credibility of a defendant-witness. Id., 15-16 n.9; State v. Jackson, 3 Conn. App. 132, 135 n.2, 485 A.2d 934 (1984).

The essence of the defendant’s claims is that his prior conviction was so remote in time that its admission had little probative value on the issue of his credibility and, correspondingly, that its admission had an enormous prejudicial effect on the determination of his credibility.

It has been held that prior conviction evidence may be introduced, without a conclusion, upon appellate review, that an abuse of judicial discretion had occurred, even though the evidence had low probative value, and was up to two decades old. State v. Nardini, 187 Conn. 513, 525, 447 A.2d 396 (1982). The issue of the present case, and its forebears, is not, however, whether the evidence had minimal probative worth, but whether its introduction was of minimal detriment to the defendant, given all of the circumstances of the trial. State v. Iasevoli, 188 Conn. 325, 327-28, 449 A.2d 996 (1982).

In Nardini, the court, in upholding the admission into evidence of a twenty year old conviction of the defendant, noted that the prior conviction wasdissimilar from the crime with, which the defendant was convicted, the prior conviction was neither serious nor degrading, and the defendant was not deterred from testifying. State v. Nardini, supra, 529. The first two of these considerations are simply another way of expressing the first standard of the Geyer and Iasevoli cases, relating to the prejudicial impact on the defendant’s cause, and, therefore, on his credibility. The third yardstick of Nardini, whether the defendant was influenced in his decision to take the stand in his own behalf, knowing that the evidence would be introduced, could be described as being his own assessment that the introduction of the prior conviction into evidence was of minimal detriment to him, given the circumstances of his trial.

The defendant carries the burden of demonstrating that specific harm will result to him if a prior conviction is introduced into evidence to impeach his credibility as a witness. State v. Braswell, supra, 308. In the present case, the defendant advanced the sole claim at trial that the conviction to be introduced into evidence was too remote for introduction. On appeal, he also argues that the prior crime was of a serious and degrading nature and therefore unduly influenced the jury. That claim was not distinctly raised at trial and need not be considered on appeal. Practice Book § 3063. The defendant took the stand and, therefore, the possible admission of the prior crime did not deter him from testifying. The defendant concedes that the prior crime was dissimilar from the crime which is the subject of this appeal. Under the standards of Nardini, the defendant therefore has no grounds for appeal.

A prior conviction which is more than ten years old may, under some circumstances, retain some probative value which is minimally sufficient to overcome any marginal prejudice, and may be admissible, therefore, without a wholly unreasonable exercise of a trial court’s discretion. State v. Nardini, supra, 529-30. The admission into evidence of a sixteen year old prior conviction to impeach a defendant’s credibility is in the crepuscular zone of discretionary evidentiary trial court rulings. Here, the defendant has not shown that its introduction into evidence was prejudicial enough to reduce that zone to the point of where an abuse of discretion occurred.

There is no error.

In this opinion the other judges concurred.

       The defendant’s amended preliminary statement of issues raised two claims of error. The second claim of error was withdrawn in his reply brief.

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).

       The state offered to introduce into evidence the prior felony conviction during the defendant’s cross-examination. Out of the presence of the jury, the defendant made an oral motion in limine to preclude the introduction of the evidence. The motion was denied.

       The state disputes the antiquity of the prior conviction, claiming it to be fourteen years old. That claim, relying on State v. Hamele, 188 Conn. 372, 384 n.7, 449 A.2d 1020 (1982), is premised on an affidavit from a records supervisor at the Connecticut correctional institution at Somers which is printed in the appendix to the state’s brief. The affidavit purports to indicate that the release date of the defendant from that institution was fourteen years prior to the trial in the present case. Although we earlier denied the defendant’s motion to expunge from the state’s brief this affidavit and references thereto, that denial was without prejudice to our reconsideration at oral argument. We now indicate that this method of presenting evidence of the defendant’s release date was improper. Such a prison record is not a court record; Doe v. Manson, 183 Conn. 183, 188, 438 A.2d 859 (1981); nor is the date of such release otherwise within the ambit of judicial notice. That evidence was not, but could and should have been, presented to the court during the trial. We, therefore, consider the age of the prior conviction to be sixteen years.

       Federal Rule of Evidence 609 provides in pertinent part: “(b) Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.”


author: Dupont, C.P.J.

text:
    Catholic Family and Community Services v. Commission on Human Rights and Opportunities et al.
    (2708)
    Dupont, C.P.J., Borden and Daly, Js.
    Argued January 11
    decision released April 2, 1985

      James E. O’Donnell, with whom, on the brief, was Michael T. Dolan, for the appellant (plaintiff).

      J. Sarah Posner, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (named defendant).
   Dupont, C.P.J.

The sole issue of this appeal is whether an administrative appeal taken from a decision of a hearing officer appointed by the chairman of the commission on human rights and opportunities (CHRO) should have been dismissed by the trial court for failure to serve the hearing officer. The trial court held that “agency” as used in General Statutes § 4-183 (b) refers to the hearing officer rather than to the commission and that since the plaintiff had served the commission, its action was abatable.

General Statutes § 4-183 (b) requires that service be made upon the agency. General Statutes § 4-166 (l)* defines “agency” as each state board, commission, department or officer.

General Statutes §§ 46a-82 through 46a-86 establish the statutory procedural framework for the commission concerning alleged discriminatory practices. The commission investigates complaints, attempts to resolve them by conciliation, and, if unsuccessful, its chairman appoints a hearing officer to conduct a hearing to resolve the matter and to issue findings of fact and an order. The hearing officer may be either a member of the commission or one of twenty-five hearing examiners appointed by the governor.

Prior to 1977, appeals from a final order of a hearing officer were not expressly subject to General Statutes § 4-183 (b). Public Acts 1977, No. 77-603, § 124, amended what is now General Statutes § 46a-95 (j) to provide for an appeal pursuant to General Statutes § 4-183. The latter statute was subsequently amended by Public Acts 1979, No. 79-163, to provide that service upon an agency may be made by mailing a copy of the petition by registered or certified mail, postage prepaid, to the office of the commissioner of the agency or to the office of the attorney general in Hartford. By 1979, “commissioner,” within the context of the statutes relating to the CHRO, had already been defined as a member of the commission. The definition remains unchanged in General Statutes § 46a-51 (4). A member of the commission is not definitionally equated with a hearing examiner. See General Statutes § 46a-54 (8); General Statutes § 46a-57 (c) (d).

General Statutes § 4-183 (b) provides in pertinent part: “Copies of the petition shall be served upon the agency and all parties of record within thirty days after mailing of such notice or, if a rehearing is requested, within thirty days after mailing of the notice of the decision thereon, except that service upon an agency may be made by the appellant mailing a copy of the petition by registered or certified mail, postage prepaid, without the use of a sheriff or other officer, to the office of the commissioner of the agency or to the office of the attorney general in Hartford.” To construe the word “agency,” as used in the first part of that sentence to be the hearing officer who heard the case would require either that the definition of agency change in the latter part of the sentence or that the phrase “office of the commissioner of the agency” be rendered superfluous when a hearing examiner conducts the hearing.

The main objective of the Uniform Administrative Procedure Act, of which General Statutes § 4-183 (b) is a part, is to obtain a uniform procedure. Connecticut Natural Gas Corporation v. DPUC, 1 Conn. App. 1, 4, 467 A.2d 679 (1983). The choice by the chairman of the commission to appoint a hearing examiner as a hearing officer rather than a commission member should not dictate the manner in which service is to be made. To exalt this choice to that level would be to defeat rather than to promote the objective of uniformity. A hearing examiner is the commission’s examiner. Wroblewski v. Lexington Gardens, Inc., 188 Conn. 44, 49, 448 A.2d 801 (1982). A hearing examiner is an instrumentality of the commission. See Board of Education v. State Department of Education, 39 Conn. Sup. 443, 449, 466 A.2d 343 (1983). The hearing examiner, after appointment by the chairman of the commission, as a hearing officer, does not gain status independent of the commission. His determinations have validity only because of the authority vested in him by the chairman of the commission. General Statutes §§ 46a-57 (d), 46a-84 (a), 46a-86, and 46a-95 (a).

The construction of “agency” as used in General Statutes § 4-183 (b) to mean “hearing officer” would contravene General Statutes § 4-166 (1) which defines an agency as a state commission or an officer authorized by law to determine contested cases. The use of the disjunctive “or” in that statutory section makes it clear that, at the very least, service upon the commission by the plaintiff was sufficient to withstand the jurisdictional attack which the defendant made. Further, “agency” within the meaning of the Uniform Administrative Procedure Act is a body in which the legislature has reposed general powers of administration of a particular state program in connection with which it has been given statutory authority to act for the state in the implementation of that program. See Rybinski v. State Employees’Retirement Commission, 173 Conn. 462, 468, 378 A.2d 547 (1977). That power has been reposed in the commission rather than in the hearing officer. See General Statutes §§ 46a-52, 46a-54 and 4-38f (1).

“Final decision” as used in General Statutes § 4-183 (a) refers to the decision of the agency, here the CHRO. The particular instrumentality of that decision, here the hearing officer, need not have been served with the plaintiff’s petition in order for the plaintiff to obtain a decision on its Superior Court appeal.

There is error, the judgment is set aside and the case is remanded with direction to deny the motion to dismiss and to proceed according to law.

In this opinion the other judges concurred.

       General Statutes § 4-183 provides in pertinent part: “(b) Proceedings for such appeal shall be instituted by filing a petition in superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the aggrieved person resides or if such person is not a resident of this state to the court for the judicial district of Hartford-New Britain within forty-five days after mailing of the notice of the final decision of the agency or, if a rehearing is requested, within forty-five days after mailing of the notice of the decision thereon. Copies of the petition shall be served upon the agency and all parties of record within thirty days after mailing of such notice or, if a rehearing is requested, within thirty days after mailing of the notice of the decision thereon, except that service upon an agency may be made by the appellant mailing a copy of the petition by registered or certified mail, postage prepaid, without the use of a sheriff or other officer, to the office of the commissioner of the agency or to the office of the attorney general in Hartford.”

       General Statutes § 4-166 provides in pertinent part: “(1) ‘Agency’ means each state board, commission, department or officer, other than the legislature, courts, judicial review council, council on probate judicial conduct, governor, lieutenant governor, attorney general or town or regional boards of education, authorized by law to make regulations or to determine contested cases . . . .”

       General Statutes (Rev. to 1979) § 31-122 (i).


text:
    Zygmunt K. Ciucias v. Valley Cab Company, Inc.
    (2728)
    Borden, Spallone and Daly, Js.
    Argued January 18
    decision released April 2, 1985

      George Lawler, with whom, on the brief, was Donald P. Guerrini, for the appellant (defendant).

      Edward S. Domnarski, Jr., for the appellee (plaintiff).
   Daly, J.

The plaintiff instituted this action to recover the balance due on a promissory note executed by the defendant. The defendant filed a counterclaim in conversion. From a judgment rendered in favor of the plaintiff on the complaint and on the counterclaim, the defendant has appealed.

While the defendant pleaded only a general denial, it felt that it was entitled to show that the outstanding amount was the individual obligation of its president and not that of the defendant.

Practice Book § 164 provides in part: “No facts may be proved under either a general or special denial except such as show that the plaintiffs statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that he has no cause of action, must be specially alleged. Thus . . . illegality not apparent on the face of the pleadings . . . must be specially pleaded.”

“On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. See Practice Book, 1978, § 3060D. This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. That is the standard and scope of this court’s judicial review of decisions of the trial court. Beyond that, we will not go.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

“Whether a corporate officer is authorized to act on behalf of a corporation is a question of fact to be resolved by the trier.” Czarnecki v. Plastics Liquidating Co., 179 Conn. 261, 268, 425 A.2d 1289 (1979). Whether the note was an individual or corporate obligation was a question of fact for the trial court. It is the province of the trial court to determine the credibility of witnesses. McNamee v. Woodbury Congregation of Jehovah’s Witnesses, 194 Conn. 645, 648, 484 A.2d 940 (1984); Holden & Daly, Connecticut Evidence (Sup. 1983) § 125 (a), pp. 449-51.

A transcript of the evidence was never prepared, as it was not requested by either party. An appellant bears the burden to show that there was error in the judgment from which he appeals. “That burden includes the presentation of a full and proper record.” Hanson Development Co. v. East Great Plains Shopping Center, Inc., 195 Conn. 60, 64, 485 A.2d 1296 (1985); Pointina Beach Assn., Inc. v. Stella, 1 Conn. App. 341, 343, 471 A.2d 970 (1984). The defendant has not sustained this burden.

Even if we assume arguendo that the defendant was entitled to produce evidence of illegality under a general denial, any error would be rendered harmless by the trial court’s statement in its memorandum of decision that illegality was not proven.

There is no error.

In this opinion the other judges concurred.


author: Borden, J.

text:
    Michelle Phillipe v. Francis J. Thomas
    (2097)
    Hull, Boeden and Daly, Js.
    Argued January 11
    decision released April 2, 1985

      Jeffrey W. Reinen, with whom, on the brief, was Jerome A. Mayer, for the appellant (defendant).

      John C. Kueej, for the appellee (plaintiff).
   Borden, J.

This is an appeal from the judgment of the trial court for the plaintiff, entitling her to the return of a deposit paid to the defendant under an agreement to purchase real estate. We find error.

On April 13,1979, the parties entered into the agreement for the sale of certain real estate from the defendant to the plaintiff for $105,000. The agreement contained a mortgage contingency clause conditioning the plaintiffs obligation on her obtaining a commitment for a thirty-year, $84,000 first mortgage at prevailing interest rates, and on such other terms and conditions imposed at the time by any lending institution where the plaintiff made application for the loan. The plaintiff was required by this clause to make immediate application for the loan and to pursue the application with diligence. She had until April 30, 1979, to obtain such a commitment or to inform the defendant that the commitment was not received.

The plaintiff applied for the mortgage at a bank, but was turned down because the amount requested was excessive in view of the bank’s appraisal of the property of $100,000. The bank, however, approved an $80,000 mortgage.

The plaintiff requested either an extension of time within which to obtain a mortgage commitment which met the terms of the agreement or a reduction in the purchase price to reflect the bank’s appraisal. The defendant refused the plaintiff’s requests. On April 30, 1979, the plaintiff timely requested that her deposit be returned. The defendant refused. The court found that the defendant’s refusal was based on his realty agent’s phone call to the bank requesting that the bank review the plaintiff’s application and give her the $84,000 mortgage by changing the appraisal or by giving her a 90 percent MGIC mortgage using the bank’s appraisal.

The court concluded that the defendant was obligated to return the plaintiff’s deposit because, although the plaintiff made a good faith effort to meet the mortgage condition, the condition was not met. On appeal, the defendant claims, inter alia, that the court applied the wrong legal standard to the plaintiff’s efforts to meet the condition. We agree.

The good faith standard was the improper standard with which to test the plaintiff’s efforts to obtain a mortgage commitment for two reasons. First, although some courts have interpreted mortgage contingency clauses such as this one to imply that the purchaser will seek to obtain a mortgage commitment in good faith; e.g., Fry v. George Elkins Co., 162 Cal. App. 2d 256, 327 P.2d 905 (1958); Liuzza v. Panzer, 333 So. 2d 689 (La. App. 1976); Bushmiller v. Schiller, 35 Md. App. 1, 368 A.2d 1044 (1977); see generally 78 A.L.R.3d 880; courts in Connecticut imply a promise that the purchaser will exert reasonable efforts to obtain a mortgage commitment. Luttinger v. Rosen, 164 Conn. 45, 47, 316 A.2d 757 (1972) (due diligence used in seeking financing); Lach v. Cahill, 138 Conn. 418, 422, 85 A.2d 481 (1951); Webb v. Moeller, 87 Conn. 138, 141, 87 A. 277 (1913) (reasonable efforts to fulfill condition precedent implied in contract to purchase stock); see also Osten v. Shah, 104 Ill. App. 3d 784, 433 N.E.2d 294 (1982); Stabile v. McCarthy, 336 Mass. 399, 145 N.E.2d 821 (1957); see generally 78 A.L.R.3d 880.

Second, the language of this agreement indicates that such a standard was intended. Kakalik v. Bernardo, 184 Conn. 386, 393, 439 A.2d 1016 (1981). The clause required the plaintiff to make immediate application for the mortgage on the terms stated in the agreement and to pursue the application “with diligence.” The words of the contract must be given their common usage and meaning where possible. Leonard Concrete Pife Co. v. C. W. Blakeslee & Sons, Inc., 178 Conn. 594, 598-99, 424 A.2d 277 (1979). “Diligence,” defined by Webster’s Third New International Dictionary as “persevering application: devoted and painstaking application to accomplish an undertaking,” and as “the attention and care required of a person . . . [as] opposed to negligence,” (emphasis in original) implies at the least that reasonable diligence is required. Thus, this contract required that reasonable diligence be used to obtain the mortgage commitment, and that standard is substantially equivalent to the “reasonable efforts” standard implied by our cases.

The difference between the good faith and reasonable efforts standards is the difference between a subjective and an objective standard. “ ‘[G]ood faith’ . . . ‘in common usage . . . has a well defined and generally understood meaning, being ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one’s duty or obligation.’ 35 C.J.S. 488, and cases cited. It has been well defined as meaning ‘An honest intention to abstain from taking an unconscientious advantage of another, even through the forms or technicalities of law, together with an absence of all information or belief of facts which would render the transaction unconscientious.’ 2 Bouvier’s Law Dictionary (3d Rev.), p. 1359.” Snyder v. Reshenk, 131 Conn. 252, 257, 38 A.2d 803 (1944). The determination of good faith involves an inquiry into the party’s motive and purpose as well as actual intent. Id., 259. The Uniform Commercial Code, although formally limited to transactions involving personal property, furnishes a useful illustration of the good faith standard. Olean v. Treglia, 190 Conn. 756, 762, 463 A.2d 242 (1983); Iamartino v. Avallone, 2 Conn. App. 119, 125, 477 A.2d 124, cert. denied, 194 Conn. 802, 478 A.2d 1025 (1984). General Statutes § 42a-1-201 (19) defines “[g]ood faith” as “honesty in fact in the conduct or transaction concerned.” Under the UCC definition, “good faith” is a subjective standard. It involves a determination of the intent or state of mind of the party concerned, taking into account the actual knowledge of the person as well as his or her motives. Funding Consultants, Inc. v. Aetna Casualty & Surety Co., 187 Conn. 637, 642-44, 447 A.2d 1163 (1982).

Reasonableness, on the other hand, is an objective standard, involving an analysis of what a person with ordinary prudence would do given the circumstances, without accounting for any particular knowledge or skill. See, e.g., Scribner v. O'Brien, Inc., 169 Conn. 389, 400, 363 A.2d 160 (1975); Calamari & Perillo, Contracts (2d Ed.) § 3-10. In contracts as in tort cases, “[t]he test is external, not subjective; that is, the question is how would a person of ordinary prudence in such a situation have behaved, not how did the defendant in fact behave.” Murphy v. Soracco, 174 Conn. 165, 168, 383 A.2d 1350 (1978). Whether the plaintiff’s actions constituted reasonable efforts to satisfy the contractual condition is a factual determination for the trial court. Lack v. Cahill, supra; see Bank of Montreal v. Gallo, 3 Conn. App. 268, 487 A.2d 1101 (1985).

Evidence of what is reasonable, however, may be relevant to determining one’s good faith and is not excluded from playing a part in that determination. Funding Consultants, Inc. v. Aetna Casualty & Surety Co., supra, 643-44, 646. Similarly, one’s good faith may be relevant in ascertaining the reasonableness of his actions. Calamari & Perillo, Contracts (2d Ed.) § 2-2.

The trial court only determined the good faith of the plaintiff in pursuing the mortgage commitment. Although the defendant moved for rectification, seeking articulation on this point, the trial court declined to state whether the plaintiff’s actions constituted reasonable efforts. Thus, there is no factual determination of the reasonableness of the plaintiffs efforts, and there was evidence which could form the basis of a contrary finding. A conclusion of the trial court cannot stand if an erroneous legal standard or rule of law was applied. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980); University of Hartford v. Hartford, 2 Conn. App. 152, 157, 477 A.2d 1023 (1984).

There is error, the judgment is set aside and a new trial is ordered.

In this opinion the other judges concurred.

       This appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c)

       The clause in full provided as follows: “This agreement is contingent upon the Buyer obtaining a commitment for a loan, to be secured by a first mortgage on the premises in the amount of $84,000, at prevailing % interest per annum, to be amortized over a 30 year term and to be on such other terms and conditions, including prepayment limitations, institutional financing charges and interest rate charges, as are imposed by any lending institution where the Buyer makes application for such a loan at the time the Buyer makes such application. The Buyer agrees to make immediate application for such a loan and to pursue said application with diligence. In the event such commitment is not obtained by the Buyer on or before April 30, 1979, the Buyer, to take advantage of this contingency, must cause notice of the Buyer’s inability to obtain such a commitment to be given to the Seller, by the Buyer’s Attorney. Receipt of such notice by the Seller shall constitute receipt by the Seller of such notice. If the Seller does not receive such notice prior to 5:00 p.m. on said date, this agreement shall remain in full force and effect as if this paragraph had not been included herein. If the Seller does receive such notice prior to 5:00 p.m., on said date, The Seller shall return to the Buyer all sums paid hereunder without interest thereon, and upon receipt of said sums by the Buyer this agreement shall terminate and be of no further force or effect and the Buyer and Seller shall be discharged of all liability, each to the other, hereunder.”

       An MGIC mortgage is one insured by the Mortgage Guaranty Insurance Corporation.

       See footnote 2, supra.

       For instance, there was testimony from a mortgage officer at the bank that the plaintiff could have obtained a MGIC mortgage commitment of $84,000 at the prevailing rates for such a mortgage, with an interest rate one quarter of one percent higher and an insurance rate one half of one percent higher than the mortgage initially sought. The language of the mortgage contingency clause does not limit the type of mortgage the plaintiff might obtain to a conventional mortgage; its broad language is certainly susceptible of a reading allowing a MGIC mortgage commitment to fulfill the condition. The failure of the plaintiff to pursue this option might, therefore, be seen as unreasonable. Additionally, there was evidence that the defendant communicated, by telegram to the plaintiff’s attorney, an offer of a $4000 unsecured loan of his own to supplement the bank’s approved $80,000 mortgage, on the same terms and conditions as offered by the bank, but the offer was refused. It is possible that the plaintiffs refusal of the defendant’s offer was made in good faith, but that such an action was not reasonable under the circumstances.


text:
    State of Connecticut v. Robert Formica
    (2613)
    Dupont, C.P.J., Hull and Borden, Js.
    Argued January 16
    decision released April 2, 1985

      Frank A. Iannotti, deputy assistant state’s attorney, for the appellant (state).

      Cornelius J. Ivers, with whom, on the brief, was Patrice S. Noah, for the appellee (defendant).
   Borden, J.

This case involves the issue of whether the failure of the state timely to serve the defendant with an inventory of an authorized wiretap requires the suppression of the evidence gathered by the wiretap. The trial court granted the defendant’s motions to suppress the evidence and to dismiss the charges against him with prejudice. The state, with the permission of the trial court, appealed. General Statutes § 54-96; Practice Book § 819. We find no error.

The facts are not in dispute. On February 23,1983, a three judge panel granted, pursuant to General Statutes § 54-41d, an application to intercept wire communications on a particular telephone line from February 23, 1983, through March 9,1983. As required by General Statutes § 54-41k, the order provided that within ninety days from March 9,1983, an inventory be served on persons not named in the application or order but whose communications were intercepted, noting the fact of the order, its date, its period of authorization and the fact of any intercepted communications. The defendant was not a person named in the application or order. Pursuant to the order, the police monitored the telephone line from February 24, 1983, through March 4, 1983. Between February 28, 1983, and March 4,1983, the defendant called the telephone number which was the subject of the order and relayed sports bets.

On the basis of these calls, a warrant was issued for his arrest on one count of professional gambling, in violation of General Statutes § 53-278b, and two counts of transmission of gambling information, in violation of General Statutes § 53-278d (a). The defendant was arraigned on these charges on May 20,1983, at which time he was given a copy of the affidavit underlying the arrest warrant. That affidavit detailed the entry of the order, its date, its period of authorization and the conversations intercepted. On August 18,1983, the defendant was served with an inventory of the wiretap under General Statutes § 54-41k. The state does not dispute that the service of the inventory on the defendant was not within the ninety day period set by the statute and was, therefore, in literal violation of the order of the panel.

General Statutes § 54-41m provides for suppression of the contents of any intercepted wire communication or evidence derived therefrom on the ground, inter alia, that “the interception was not made in conformity with the order of authorization or approval.” The state argues that, because the defendant was served within the ninety days with a copy of the arrest warrant affidavit containing the same information as the inventory, in the absence of a showing of prejudice by the defendant or bad faith by the state, the purpose of the statute was fulfilled, and that this substantial compliance was sufficient to avoid the remedy of suppression. We disagree.

We do agree that not every violation of the wiretap statute requires suppression. In deciding whether a violation requires suppression, “it is necessary to look to the state act to determine whether the particular requirement not followed was intended by the legislature to be a substantive part of a scheme seeking to limit the use of ‘this extraordinary investigative device.’ ” State v. Grant, 176 Conn. 17, 25-26, 404 A.2d 873 (1978). We hold that strict compliance with the service of inventory requirement was intended by the legislature to be a substantive part of such a scheme, and that failure of such compliance requires suppression under General Statutes § 54-41m.

First, the language of General Statutes § 54-41k is mandatory. It provides that, as to persons named in the order, the panel “may” require service of an inventory, but as to persons, like the defendant, not named in the order the panel “shall” require such service. Indeed, before 1982 this language was reversed; service was mandatory on named persons and discretionary on unnamed persons. General Statutes (Rev. to 1981) § 54-41k. In 1982, the legislature made service discretionary on persons named in the order and mandatory on unnamed persons, by changing in the first sentence of the statute the word “shall” to “may,” and changing “and such other parties to intercepted communications as the panel in its discretion may determine is in the interest of justice” to “and shall cause to be served on persons not named in the order or application whose communications were intercepted.” (Emphasis added.) Public Acts 1982, No. 82-368, § 8. Compare footnotes 1 and 4, supra. Furthermore, the last two sentences of General Statutes § 54-41k, which permit an extension of the ninety day period to 150 days, both speak of the service “of the inventory required by this section . . . .” (Emphasis added.) Neither this section nor § 54-41m, which provides for a motion to suppress, refers to substantial compliance with the act or prejudice to the defendant.

Second, the cases interpreting the wiretap act have consistently done so in a strict fashion. See State v. Ross, 194 Conn. 447, 459, 481 A.2d 730 (1984) (“examination of the plain language of General Statutes § 54-41a et seq. quickly makes it abundantly clear that the legislature sought to limit carefully such intrusions”); State v. Thompson, 191 Conn. 360, 372, 464 A.2d 799 (1983), cert. denied, 465 U.S. 1006, 104 S. Ct. 999, 79 L. Ed. 2d 231 (1984) (noting “a strict approach on the part of our legislature with respect to the minimization question”); State v. Grant, supra, 26 n.3 (“[tjhese and other comparisons reveal a clear intent on the part of the legislature to minimize reliance on electronic surveillance, strictly limiting its use to only those situations statutorily set forth in the fashion prescribed by the act”); State v. Assuntino, 180 Conn. 345, 349, 429 A.2d 900 (1980) (“authority to wiretap that is contained in General Statutes § 54-41c (8) requires strict compliance” with the statutory requirements.)

Third, the history of our wiretap act is replete with strong declarations of legislative intent that it be strictly construed, and that its carefully and narrowly drawn provisions reflect a delicate balancing of interests which placed great weight on safeguards to protect individual liberties. See 14 S. Proc., Pt. 2, 1971 Sess., pp. 844, 849, 856, 869, 870, 870A, 900, 911. Indeed, in the legislative debate, the provision requiring the ninety day postintercept notice was characterized as “very important.” Id., 870. It is clear, therefore, that the legislative mind was acutely aware that the act impinged on the “right to be let alone—the most comprehensive of rights and the right most valued by civilized men”; Olmstead v. United States, 277 U.S. 438, 478, 48 S. Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting); and sought to limit that process as much as legitimately possible. This history counsels strongly that we be very cautious about reading into the act exceptions which would erode those safeguards for the individual.

Finally, the provision at issue plays a substantive part in the scheme of the act seeking to limit the use of wiretaps as an investigative device. State v. Grant, supra, 25-26. A person whose property which has been seized by a search ordinarily is aware of that fact and may, if the property is not contraband and the seizure was unlawful, regain it. A person whose conversation has been intercepted, however, is unaware of that fact and cannot regain his lost privacy, whether the loss was lawful or unlawful. The service of the ninety day post-intercept inventory within the required time period on one who was not a named target of the tap alerts him promptly to the fact that his conversations were intercepted, thus enabling him to obtain from the panel copies of his conversations, the applications and orders “immediately upon the filing of a motion requesting such information”; General Statutes § 54-41k; and enabling him promptly to seek his civil remedies under General Statutes § 54-41r.

A strict reading of the inventory service requirement will further the important role which it plays in the wiretap scheme. The legislature intended strictly to limit wiretaps, not only as to when and how they may be obtained, but also as to their execution “in the fashion prescribed by the act.” State v. Grant, supra, 26 n.3. This process of execution necessarily includes a postintercept procedure requirement like the one at issue here, which directly implicates the individual and triggers important rights which the act gives him. Requiring strict compliance with this requirement will serve two purposes. It will be a prophylaxis against administrative oversight which could, in cases unlike this one, unduly delay actual notice to one whose conversations were overheard. It will also be a guarantee that, in cases like this one where the person overheard was subsequently arrested, before the state may use the fruits of its wiretap against him it must follow the important dictates of the statute that permitted it to wiretap in the first place. This “approach is necessary to ensure the integrity of the wiretap statute and of the functioning of the judiciary with respect to it.” State v. Thompson, supra, 383.

We recognize that, as the state argues, federal courts have held that both the mandatory and discretionary postintercept notice requirements of the federal wiretap statute require only substantial compliance and a lack of prejudice to the defendant. See, e.g., United States v. Fury, 554 F.2d 522 (2d Cir. 1977), cert denied, 436 U.S. 931, 98 S. Ct. 2831, 56 L. Ed. 2d 776 (1978); United States v. Civella, 533 F.2d 1395 (8th Cir. 1976), cert. denied, 430 U.S. 905, 97 S. Ct. 1174, 51 L. Ed. 2d 581 (1977); United States v. Wolk, 466 F.2d 1143 (8th Cir. 1972); see also United States v. Donovan, 429 U.S. 413, 439, 97 S. Ct. 658, 50 L. Ed. 2d 652 (1977) (discretionary postintercept notice is designed to assure community that wiretaps are reasonably used, not to serve as independent restraint on resort to wiretap procedure). We find these cases unpersuasive in interpreting our statute. It is well settled “that our own wiretap statute is in many ways more stringent than the federal act.” State v. Thompson, supra, 371; State v. Grant, supra, 25-26 n.3. A brief perusal of the two statutes; General Statutes §§ 54-41a through 54-41t and 18 U.S.C. §§ 2510 through 2518; vividly illuminates that stringency. Moreover, the federal statute does not come to us with the judicial gloss, legislative history and emphasis on the importance of the postintercept notice which we have already identified with respect to our statute.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 54-41k provides as follows: “service of notice of interception; inspection of intercepted communications, applications and ORDERS; postponement OF service. Within a reasonable time but not later than ninety days next succeeding the termination of the period of an order or extensions thereof, the issuing or denying panel may cause to be served on the persons named in the order or the application, and shall cause to be served on persons not named in the order or application whose communications were intercepted, an inventory which shall include notice of the fact of the entry of the order or the application; the date of the entry and the period of authorized interception, or the denial of the application; and the fact that during the period wire communications were or were not intercepted. The panel shall make available to such person or his counsel for inspection the intercepted communications, applications and orders immediately upon the filing of a motion requesting such information. On an ex parte showing of good cause approved unanimously by the panel the serving of the inventory required by this section may be postponed for a period not to exceed sixty days. Not more than one such postponement shall be authorized and under no circumstances shall the serving of the inventory required by this section be made later than one hundred fifty days after the termination of the period of an order or extensions thereof.”

       Although the record here does not contain the order, both parties agreed at oral argument that the order formally complied with the statutory mandate.

       The state does not argue that, because the interception had already occurred when the violation took place, the interception was not one which was “not made in conformity with the order . . . . ” General Statutes § 54-41m. Indeed, such an argument would prove too much. It would countenance a total disregard of the requirement of General Statutes § 54-41k that the inventory be served within ninety days from the termination of the order, since it would permit the use in evidence of the intercepted communication even in absence of any service of an inventory, subject only to the requirement of General Statutes § 54-411. General Statutes § 54-411 requires, in general terms, that as a precondition of use in evidence of an intercepted communication a copy of the application and order be served on the aggrieved person thirty days before the trial.

       Prior to 1982, the statute provided in pertinent part: “Within a reasonable time but not later than ninety days next succeeding the termination of the period of an order or extensions thereof, the issuing or denying panel shall cause to be served, on the persons named in the order or the application, and such other parties to intercepted communications as the panel in its discretion may determine is in the interest of justice, an inventory . . . . ” General Statutes (Rev. to 1981) § 54-41k.


text:
    Margaret Sprague v. Commission on Human Rights and Opportunities et al.
    (2557)
    Hull, Borden and Daly, Js.
    Argued January 8
    decision released April 2, 1985

      Jonathan L. Gould, for the appellant (plaintiff).

      Walter A. DeAndrade, for the appellee (defendant Bunting and Lyons, Inc.)
   Daly, J.

The plaintiff appealed to the Superior Court for the judicial district of Hartford-New Britain from a ruling made by a hearing officer of the defendant commission on human rights and opportunities finding no discriminatory action by the plaintiffs employer, Bunting and Lyon, Inc. The employer moved to dismiss the appeal on the ground, inter alia, of improper venue. The plaintiff moved to transfer the appeal to the judicial district of New Haven. The court granted the employer’s motion to dismiss and took no action on the plaintiff’s motion to transfer. The plaintiff appealed from the judgment of dismissal.

It is undisputed that the plaintiff is a resident of Madison and alleges that the discriminatory practice occurred in Wallingford, where the employer is located. Both of these towns are located in the judicial district of New Haven.

General Statutes (Rev. to 1983) § 46a-95 (j), applicable to appeals from final orders of hearing officers of the commission, provides, in part: “Any respondent or complainant aggrieved by a final order of a hearing officer .. . may appeal therefrom in accordance with section 4-183, except venue for such appeal shall be in the judicial district where the discriminatory practice is alleged to have occurred or in the judicial district in which such person resides . . . . ”

The trial court, in granting the motion to dismiss, relied on Farricielli v. Personnel Appeal Board, 186 Conn. 198, 204, 440 A.2d 286 (1982), which held that “[t]he venue provisions of § 4-183 (b) are jurisdictional and ‘mandatory, and, if not complied with, render the appeal subject to abatement. . . .’ ” The Farricielli court also determined that the trial court in that case had no power or jurisdiction to order a change of venue because it had no jurisdiction over the subject matter. Id., 206-207.

The plaintiff relies on General Statutes § 51-351, which became effective on July 1, 1978, while the Farricielli case was pending in the trial court. Section 51-351 provides: “No cause shall fail on the ground that it has been made returnable to an improper location.” We believe that § 51-351, rather than Farricielli, controls here.

The majority of the Farricielli court held that § 51-351 did not apply to the facts of that case because it was not retroactive. Id., 205-206 n.6. The dissenters argued that it did have retroactive effect. Id., 211.

Since § 51-351 is now and was in effect when the plaintiff filed her appeal in the trial court, the reasoning of the Farricielli dissent as to its scope and purpose is apt here: “There can hardly be any question but that the legislature intended to authorize the transfer of cases such as the appeal of this plaintiff in enacting § 51-351, because there is no other established mechanism for implementing this declaration of policy. Already in existence was § 51-347b which authorized transfer of ‘[a]ny cause’ by order of the court on its own motion or the motion of any party. The use of the broader word ‘cause’ in this statute, as well as in § 51-351, instead of ‘action’ makes it clear that the authority to transfer extends to administrative appeals as well as ordinary civil actions.” Id., 210.

We find error in the granting of the motion to dismiss because the legislature’s intention in enacting § 51-351 was to provide the remedy of transfer rather than dismissal in such a situation.

There is error, the judgment is set aside and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1983) § 4-183 (b) provides, in pertinent part: “Proceedings for such appeal shall be instituted by filing a petition in superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the aggrieved person resides . . . within forty-five days . . . . ”