author: SCHALLER, J.

text:
    ELIZABETH B. PORTER v. JOHN PORTER
    (AC 19595)
    Schaller, Spear and Stoughton, Js.

      Argued October 31, 2000
    officially released February 13, 2001

      Bruce W. Diamond, with whom was Richard M. Mar-año, for the appellant (defendant).

      Campbell D. Barrett, with whom, on the brief, was C. Michael Budlong, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant, John Porter, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Elizabeth B. Porter. On appeal, the defendant claims that the court improperly (1) ordered him to pay time limited alimony for a fourteen year period, (2) determined the value of the parties’ marital home to be $270,000, the defendant’s Saab vehicle to be $4300 and the plaintiffs Plymouth vehicle to be $9490, (3) classified the funds in the defendant’s business and share bank accounts as “property” subject to distribution under General Statutes § 46b-81 and (4) ordered the defendant to maintain life insurance without requiring evidence of the cost or the availability of such insurance to him. We affirm the judgment of the trial court.

The following facts and procedural history are necessary for a proper resolution of this appeal. The plaintiff and the defendant were married on June 13, 1981. Because of a breakdown of their relationship, the plaintiff brought this dissolution action on February 25,1997. The parties have two minor children, ages eight and twelve at the time of trial, bom to them during their marriage.

Before trial began, the parties entered into an agreement in which they disposed of the issues concerning custody, visitation, child support and division of personal property. The parties, however, were unable to reach an agreement regarding alimony and asset distribution.

On April 30, 1999, the court rendered judgment dissolving the parties’ marriage, concluding that it had broken down irretrievably due to the defendant’s adultery. The court also entered orders concerning alimony and asset distribution. With regard to the issues in this appeal, the court ordered that (1) the defendant pay time limited alimony in the amount of $400 per week for a fourteen year period, (2) the defendant receive the Saab vehicle, valued at $4300, (3) the plaintiff receive the marital home, valued at $270,000, and the Plymouth vehicle, valued at $9490, and (4) the defendant maintain his then existing life insurance policy in the amount of $350,000, naming the children of the marriage as beneficiaries. This appeal followed. Additional facts will be set forth as they become relevant to the defendant’s claims.

I

The defendant first claims that the court improperly ordered him to pay time limited alimony for a fourteen year period. To advance this claim, the defendant asserts the following three arguments: (1) because the court indirectly linked the time period of alimony to the children’s postmajority education, the time limited alimony here is really a disguise for impermissible child support; (2) the court based its decision as to the time period on speculative evidence; and (3) the court awarded the plaintiff alimony in excess of her request. We are unpersuaded.

The following additional facts are pertinent to the defendant’s claim. During the marriage, the plaintiff sacrificed her career goals to care for the children, and to allow the defendant to complete law school and pursue a career as an attorney. The plaintiff also was forced to abandon her pursuit of obtaining her master’s degree when this action commenced. For her sacrifices, the plaintiff asked the court for time limited alimony in the amount of $400 per week for, at least, a period of ten years. The court awarded the plaintiff’s requested amount per week, but it extended the time period for the alimony to fourteen years. In doing so, the court reasoned that the fourteen year time period represented “a time when the children are likely to have left mother’s home and completed their education, giving mother an opportunity to begin a full-time focus on her career and an opportunity to enhance her income at that time.”

Before addressing any of the defendant’s claims, we note that our standard of review in domestic relations cases is limited. “The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case, such as demeanor and attitude of the parties at the hearing. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” Hathaway v. Hathaway, 60 Conn. App. 818, 818-19, 760 A.2d 1280 (2000).

A

The defendant first claims that the court improperly awarded the time limited alimony for a fourteen year period because it linked that time limit to the children’s postmajority education, thereby rendering an impermissible child support award. Stated another way, the defendant argues that the alimony here is actually child support under the guise of alimony. We disagree.

General Statutes § 46b-82 describes circumstances under which a court may award alimony. “The court is to consider these factors in making an award of alimony, but it need not give each factor equal weight. ... As long as the trial court considers all of these statutory criteria, it may exercise broad discretion in awarding alimony. . . . The court is empowered, after considering the statutory criteria, to award either time limited alimony or unlimited alimony.” (Citations omitted; internal quotation marks omitted.) Costa v. Costa, 57 Conn. App. 165, 174, 752 A.2d 1106 (2000).

“In particular, rehabilitative alimony, or time limited alimony, is alimony that is awarded primarily for the purpose of allowing the spouse who receives it to obtain further education, training, or other skills necessary to attain self-sufficiency.” Bornemann v. Bornemann, 245 Conn. 508, 539, 752 A.2d 978 (1998).

In the present case, the court’s decision, rendered from the bench, demonstrates that it considered the statutory criteria in deciding to award time limited alimony, namely, to give the plaintiff an opportunity to develop marketable skills. It reasoned that while the children were in college, the alimony would “[give the] mother an opportunity to begin a full-time focus on her career and an opportunity to enhance her income at that time.” Contrary to the defendant’s argument, the court’s reference to the children’s college attendance did not imply that the alimony funds were earmarked for the children’s postmajority support. Rather, the court simply referenced a point at which the mother would have the opportunity to pursue career goals. We cannot conclude, therefore, that the court abused its broad discretion by referencing the children’s postmajority education when it awarded the time limited alimony for a fourteen year period.

B

The defendant next claims that the court improperly ordered him to pay time limited alimony for a fourteen year period because the court based its decision on speculative evidence. “In order to conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did.” (Internal quotation marks omitted.) Lake v. Lake, 49 Conn. App. 89, 91, 712 A.2d 989, cert. denied, 246 Conn. 902, 719 A.2d 1166 (1998). After reviewing the facts set forth in the court’s decision regarding its award of alimony, we conclude that those facts were supported by the evidence and, thus, the court did not abuse its discretion.

C

The defendant also claims that the court improperly ordered him to pay time limited alimony for a fourteen year period because it awarded the plaintiff alimony in excess of the ten years she had requested. We are unpersuaded.

“We have often stated that the power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances that arise out of the dissolution of a marriage. Tessitore v. Tessitore, 31 Conn. App. 40, 45, 623 A.2d 496 (1993). These equitable powers give the court the authority to consider all the circumstances that may be appropriate for a just and equitable resolution of the marital dispute. . . . Sands v. Sands, 188 Conn. 98, 105, 448 A.2d 822 (1982), cert. denied, 459 U.S. 1148, 103 S. Ct. 792, 74 L. Ed. 2d 997 (1983). The trial court may award alimony to a party even if that party does not seek it and has waived all claims for alimony. Id., [102-105] (court free to reject stipulation of parties for no alimony as unfair and inequitable and to award $1 per year alimony). A trial court may award alimony as part of the court’s general equitable power. LaCroix v. LaCroix, 189 Conn. 685, 689, 457 A.2d 1076 (1983).” (Emphasis added; internal quotation marks omitted.) Lord v. Lord, 44 Conn. App. 370, 374, 689 A.2d 509, cert. denied, 241 Conn. 913, 696 A.2d 985 (1997), cert. denied, 522 U.S. 1122, 118 S. Ct. 1065, 140 L. Ed. 2d 125 (1998).

In this case, the court ordered the defendant to pay the plaintiff time limited alimony for a longer duration than she had requested. Although the plaintiff had requested time limited alimony for a period of, at least, ten years, the court awarded alimony for a period of fourteen years. We note that the court could have completely ignored the plaintiffs request and ordered lifelong alimony without abusing its discretion. General Statutes § 46b-82. We conclude, therefore, that the court did not abuse its discretion in awarding the plaintiff time limited alimony in excess of her minimum request.

II

The defendant next claims that the court improperly found the value of (1) the parties’ marital home to be $270,000, (2) the defendant’s Saab vehicle to be $4300 and (3) the plaintiffs Plymouth vehicle to be $9490. We are not persuaded by the first two claims and decline to review the third claim.

The following additional facts are necessary for our resolution of the defendant’s claims. At trial, neither party called any appraisers or other experts to testify about the fair valuation of the disputed property. Instead, the parties testified about those issues. With regard to the marital home, the defendant testified that the value of the home was $285,000. In arriving at that figure, the defendant added the purchase price of the home, $270,000, to the cost of subsequent home improvements, $15,000. The plaintiff, on the other hand, testified that the value of the home was $271,750. She had a Realtor conduct a market analysis, which gave a range of value of the home. According to the plaintiff, she derived her figure from the midpoint of that market analysis. The court found the value of the home to be $270,000, an amount slightly less than the plaintiffs estimation.

As to the defendant’s Saab vehicle, the defendant originally stipulated in his financial affidavit that the value of the vehicle was $4300, which represented its retail value. At trial, however, he argued that the lesser trade in value of the vehicle, $2425, should be used in the court’s valuation. Nevertheless, the court found the value of the Saab vehicle to be $4300.

The parties also disputed the value of the plaintiffs Plymouth vehicle. The defendant claimed that the vehicle had a retail value of $16,700. In response, the plaintiff argued that the court should utilize the lower trade in value of the vehicle, $12,900. The court rejected both amounts and found the value of the Plymouth vehicle to be $9490.

A

THE MARITAL HOME

The defendant first contends that the court’s valuation of the parties’ marital home was improper because it chose a value less than both parties requested. We disagree.

We begin our analysis by noting that a trial court has broad discretion in determining the value of property. “In assessing the value of . . . property . . . the trier arrives at his own conclusions by weighing the opinions of the appraisers, the claims of the parties, and his own general knowledge of the elements going to establish value, and then employs the most appropriate method of determining valuation. . . . The trial court has the right to accept so much of the testimony of the experts and the recognized appraisal methods which they employed as he finds applicable; his determination is reviewable only if he misapplies, overlooks, or gives a wrong or improper effect to any test or consideration which it was his duty to regard.” (Internal quotation marks omitted.) Rolla v. Rolla, 48 Conn. App. 732, 748, 712 A.2d 440, cert. denied, 245 Conn. 921, 717 A.2d 237 (1998). With that standard of review in mind, we now turn our attention to the present case.

Here, neither party provided the court with expert testimony as to the value of the home. As a result, the court was left with the claims of the parties and its general knowledge to establish the value of the home. According to the defendant, the value of the home was $285,000. The court, however, determined the value to be $270,000, a figure slightly less than the value proposed by the plaintiff, $271,750, which she derived from the mid range of a market analysis. Given the circumstances the court faced in determining the value of the marital home, we cannot conclude that its valuation of $270,000 was clearly erroneous. Id., 749.

B

THE SAAB VEHICLE

The defendant also argues that the court’s valuation of his Saab vehicle was improper because the court utilized the retail value rather than the trade in value. We are unpersuaded.

As discussed in part II A of this opinion, we accord a trial court great deference in assessing the value of property. As with his valuation of the home, the defendant provided the court with little evidence as to the value of the vehicle because he did not introduce any expert testimony. Prior to trial, however, the defendant stipulated in his financial affidavit that his Saab vehicle had a retail value of $4300. Nonetheless, at trial, he argued that the value of the vehicle was $2425, which represented the lower trade in value. The court adopted the retail value. Under those circumstances, we conclude that the court did not abuse its discretion in valuing the Saab vehicle at $4300.

C

THE PLYMOUTH VEHICLE

The defendant next contends that the court’s valuation of the plaintiffs Plymouth vehicle was improper because the court utilized a value less than the figure that even the plaintiff requested. We decline to review this claim.

“It is a well established principle of appellate procedure that the appellant has the duty of providing this court with a record adequate to afford review. Practice Book § 61-10; Lombardi v. Lombardi, 55 Conn. App. 117, 118, 737 A.2d 988 (1999), cert. denied, 252 Conn. 943, 747 A.2d 520 (2000). Where the factual or legal basis of the trial court’s ruling is unclear, the appellant should seek articulation pursuant to Practice Book § [66-5].” (Internal quotation marks omitted.) Fitzgerald v. Fitzgerald, 61 Conn. App. 162, 164, 763 A.2d 669 (2000). “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the defendant’s claim] would be entirely speculative.” (Internal quotation marks omitted.) Id., 163.

With regard to the Plymouth vehicle, the plaintiff argued at trial that the vehicle had a value of $12,900 while the defendant argued that it had a value of $16,700. The court, however, rejected both amounts and found the value of the vehicle to be $9490. In doing so, the court failed to articulate any reason for the basis of its decision. Because the defendant did not seek an articulation on this matter, we do not have a record adequate to review the court’s finding. Therefore, we decline to review this claim.

Ill

The defendant also claims that the court improperly classified the funds in his business and share bank accounts as “property” subject to distribution under § 46b-81. We are not persuaded.

The following additional facts are pertinent to the defendant’s claim. At the time of trial, the defendant was employed as an attorney by Waterbury Hospital. In addition, he had a private law practice and maintained a business bank account for that practice. The balance in his business bank account was approximately $12,753.

The defendant also maintained a share bank account. Part of the balance of that account included $17,500 that the defendant derived from his private law practice. In dividing the property, the court considered the $12,753 from the defendant’s business account and the $17,500 from his share account as property subject to distribution pursuant to § 46b-81.

We begin our analysis by noting that the legislature has granted courts great discretion in distributing assets in a dissolution action. “The distribution of assets in a dissolution action is governed by [General Statutes] § 46b-81, which provides in pertinent part that a trial court may assign to either the husband or the wife all or any part of the estate of the other. ... In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates. . . . This approach to property division is commonly referred to as an all-property equitable distribution scheme. . . .

“There are three stages of analysis regarding the equitable distribution of each resource: first, whether the resource is property within § 46b-81 to be equitably distributed (classification); second, what is the appropriate method for determining the value of the property (valuation); and third, what is the most equitable distribution of the property between the parties (distribution).” (Citation omitted; emphasis added; internal quotation marks omitted.) Costa v. Costa, supra, 57 Conn. App. 169, quoting Lopiano v. Lopiano, 247 Conn. 356, 363-64, 752 A.2d 1000 (1998).

The defendant argues that under the first part of the analysis, the court improperly classified the funds in the bank accounts as “property” rather than future income because he was going to use those funds to pay the plaintiffs alimony. We disagree.

In Lopiano v. Lopiano, supra, 247 Conn. 365, our Supreme Court determined that the term “property” as used in § 46b-81 has a broad definition. It defined property “as the term commonly used to denote everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate. It extends to every species of valuable right and interest, and includes real and personal property, easements, franchises, and incorporeal hereditaments . . . .” (Internal quotation marks omitted.) Id., quoting Black’s Law Dictionary (6th Ed. 1990). “[This] broad definition of property [however is] not entirely without limitation, and . . . property under § 46b-81 includes only interests that are presently existing, as opposed to mere expectancies.” Lopiano v. Lopiano, supra, 365-66.

In the present case, there is no question that the funds in the defendant’s business and share bank accounts were presently existing at the time of trial and that he had a presently existing interest in such funds. The interest in those funds was not transformed, as the defendant argues, into a mere expectancy simply because he indicated that the funds may be used to pay the plaintiffs alimony in the future. We conclude that the court properly classified the funds as “property” as the term is used in § 46b-81 and, as such, the funds were subject to distribution.

IV

The defendant’s final claim is that the court improperly ordered him to maintain his then existing life insurance policy in the amount of $350,000, naming the children of the marriage as beneficiaries. Specifically, the defendant claims that the court improperly ordered him to maintain his life insurance without evidence of the cost or the availability of such insurance to him. We disagree.

The following additional facts are pertinent to the defendant’s claim. At the time of the dissolution, the defendant had two life insurance policies; one with a face value of $350,000, and the other with a face value of $153,000. The defendant, in his financial affidavit, represented to the court that both of those life insurance policies were in existence at the time of the dissolution. As part of its judgment, the court ordered the defendant to maintain the life insurance policy with a face value of $350,000, naming the children of the marriage as beneficiaries.

“An order for life insurance is very often an appropriate and necessary component of a judgment of dissolution of marriage.” (Internal quotation marks omitted.) Quindazzi v. Quindazzi, 56 Conn. App. 336, 338, 742 A.2d 838 (2000). “Indeed, orders requiring the maintenance of life insurance have been approved on numerous occasions by our courts. See Leo v. Leo, 197 Conn. 1, 495 A.2d 704 (1985); Wolk v. Wolk, 191 Conn. 328, 464 A.2d 780 (1983); Broaca v. Broaca, 181 Conn. 463, 435 A.2d 1016 (1980); Mauro v. Mauro, 16 Conn. App. 680, 548 A.2d 471 (1988); Papageorge v. Papageorge, [12 Conn. App. 596, 533 A.2d 229 (1987)]. In each of these cases, however, it is important to note that the life insurance policy was in existence at the time of the judgment. The trial court in each of these cases, therefore, had available to it all of the information necessary to craft an appropriate order regarding such insurance.” (Internal quotation marks omitted.) Lake v. Lake, supra, 49 Conn. App. 91-92; see also Carroll v. Carroll, 55 Conn. App. 18, 23, 737 A.2d 963 (1999).

On the other hand, we have held that if the life insurance was not in existence at the time of the judgment, the court cannot craft an order regarding such insurance without evidence of the cost or the availability of the life insurance to the party ordered to purchase it. Michel v. Michel, 31 Conn. App. 338, 340-41, 624 A.2d 914 (1993). “Without knowing the availability of such insurance, the trial court has entered an order with which the [defendant] may not be able to comply. Without knowing the cost of such insurance, the trial court has entered other financial orders that may be inappropriate, that is, too high or too low depending on the funds required to obtain such insurance.” Id., 341.

According to the defendant, the present case is controlled by Michel and, as such, the court needed evidence as to the cost and the availability of the life insurance to him. We disagree. Unlike the situation in Michel, the life insurance in the present case was in existence at the time of the judgment. Through his financial affidavit, the defendant represented to the court that he had two existing life insurance policies. The court ordered that the defendant maintain one such policy for the benefit of the children. It changed neither the value nor any other condition of the life insurance that would affect its availability to the defendant. Under those circumstances, we conclude that the court had available to it all of the information necessary to craft an appropriate order regarding the life insurance.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-82 provides: “At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”


source: Caselaw Access Project

author: LAVERY, C. J. SPEAR, J.,

license: Public Domain

text:
    HARSHAD GOHEL ET AL. v. ALLSTATE INSURANCE COMPANY ET AL.
    (AC 19337)
    Lavery, C. J., and Spear and Dupont, Js.

      Argued February 23, 2000
    officially released February 20, 2001

      James K. Smith, for the appellants (plaintiffs).

      David J. McDonald, for the appellee (named defendant).
   Opinion

LAVERY, C. J.

The plaintiffs, Harshad Gohel, Anil Gohel and Ketan Patel, appeal from the trial court’s granting of the motion for summary judgment filed by the defendant Allstate Insurance Company (Allstate). On appeal, the plaintiffs claim that the court improperly concluded that their claims were barred by the operation of Public Acts 1993, No. 93-77, § 2 (e) (P.A. 93-77), codified as General Statutes § 38a-336 (g) (l). We agree and reverse the judgment of the trial court.

The following facts are relevant to this appeal. On August 1, 1993, the plaintiffs were involved in an automobile accident with the defendant Brian Zullo on Main Street in Danbury. Each of the plaintiffs sustained physical injuries in the accident.

At the time of the accident, the plaintiffs were covered by a contract of automobile insurance issued by Allstate to Hasmukhrai Gohel on February 23, 1993, for the period of March 13, 1993, through September 13, 1993. The contract provided in relevant part: “Any legal action against Allstate must be brought within two years from the date of the accident.”

The plaintiffs settled their claims against Zullo and exhausted the limits of his liability coverage, $40,000, on April 8, 1994. On July 8, 1994, the plaintiffs filed a written claim with Allstate for benefits under the underinsured motorists coverage section of their contract. The plaintiffs then claimed such benefits in an action they brought against Allstate on December 3, 1997.

On April 13,1998, Allstate filed a motion for summary judgment, asserting that the plaintiffs’ claims were barred “by the statute of limitation as set out in Public Act 93-77 and codified as . . . General Statutes [§] 38a-336 (g).” On February 8, 1999, the court, without a written memorandum of decision, rendered summary judgment in favor of Allstate, ruling in its order, “There is no issue of material fact that the [plaintiffs’] claim is time barred by operation of [§ 38a-336 (g)].” This appeal followed.

I

The plaintiffs claim that the court improperly concluded that their claim was barred by operation of § 38a-336 (g). We agree.

“Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 402, 528 A.2d 805 (1987). Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case. See Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). The facts at issue are those alleged in the pleadings. See Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 489, 280 A.2d 359 (1971). The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. . . . Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact. Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 543, 494 A.2d 555 (1985).” (Citations omitted; internal quotation marks omitted.) Lunn v. Cummings & Lockwood, 56 Conn. App. 363, 369-70, 743 A.2d 653 (2000); Beebe v. East Hartford, 48 Conn. App. 60, 64, 708 A.2d 231 (1998).

“Statutory construction is a question of law and therefore our review is plenary. . . . Mack v. LaValley, 55 Conn. App. 150, 165, 738 A.2d 718, cert. denied, 251 Conn. 928, 742 A.2d 363 (1999). The process of statutory interpretation involves a reasoned search for the intention of the legislature. Frillici v. Westport, 231 Conn. 418, 431, 650 A.2d 557 (1994). In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Lunn v. Cummings & Lockwood, supra, 56 Conn. App. 371; see also United Illuminating Co. v. New Haven, 240 Conn. 422, 431, 692 A.2d 742 (1997).

Public Act 93-77 was approved on May 20, 1993, to take effect on its passage. The legislative history of P.A. 93-77 indicates that it was enacted with the express purpose of repairing a perceived flaw in the legislative scheme concerning the timing for filing claims for uninsured motorist or underinsured motorist coverage. That flaw had been exposed by the Supreme Court in its decision in McGlinchey v. Aetna Casualty & Surety Co., 224 Conn. 133, 617 A.2d 445 (1992).

In McGlinchey, the plaintiff exhausted the limits of the tortfeasor’s liability insurance more than two years after the date of the accident. Id., 134, 135 n.3. The plaintiff thereafter filed a claim with her insurer for benefits under the uninsured motorists coverage section of her policy. The plaintiff claimed that she had waited until she had exhausted the tortfeasor’s insurance before filing the claim with her insurer because of the Supreme Court’s holding in Continental Ins. Co. v. Cebe-Habersky, 214 Conn. 209, 212-13, 571 A.2d 104 (1990). McGlinchey v. Aetna Casualty & Surety Co., supra, 138-39. In Continental Ins. Co., the Supreme Court held that “General Statutes § 38-175c (b) (1) [now § 38a-336 (b)] obligates insurance companies to pay on a policy’s uninsured motorist coverage only after the limits of liability under all bodily injury bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements . . . .” (Internal quotation marks omitted; emphasis added.) Continental Ins. Co. v. Cebe-Habersky, supra, 212.

The court in McGlinchey, while agreeing that Continental Ins. Co. required the plaintiff to liquidate her claim against the tortfeasor before claiming under her uninsured motorist coverage, disagreed with the plaintiffs contention that this requirement permitted her to wait until she had liquidated her claim against the tortfeasor before bringing her claim for arbitration under the insurance contract, notwithstanding the contract provision that all legal action be brought within two years from the date of the accident. McGlinchey v. Aetna Casualty & Surety Co., supra, 224 Conn. 138-40.

The practical effect of the McGlinchey decision was that, if it took longer than two years from the date of the accident for a claimant to exhaust the tortfeasor’s insurance, the claimant no longer had access to his or her uninsured or underinsured motorist coverage. Indeed, one might speculate that such a rule created a financial incentive for insurance companies to delay the settlement of claims against the tortfeasor’s liability coverage as long as possible to reduce the likelihood of a subsequent successful claim against an insured’s uninsured motorist coverage. That type of behavior, taken to its logical conclusion, could render worthless an automobile owner’s uninsured motorist coverage. It was that perceived inequity in the statutory scheme that the legislature sought to remedy by the passage of P.A. 93-77.

The fact that the legislature had the McGlinchey holding in mind as it considered P.A. 93-77 is demonstrated both by the text of the statute and the legislature’s debates on the act. Answering another legislator’s query, Representative Cameron C. Staples, the proponent of that provision of P.A. 93-77, explained: “Currently, under law, there is a two year limitation within which a claim may be brought. That corresponds to the statute of limitations period for bringing claims that allege a personal injury.

“The problem arises that with a statute of limitations and permissible period of time for bringing a claim . . . both expiring . . . within the same period of time, you may not know at the time that you have to bring [the] claim . . . that you are in fact in a situation where there’s underinsured motorist coverage [that] needs to be claimed.

“So this extends beyond the time period within which the suit may be brought, the time period that you may bring a claim under your underinsured or uninsured motorist provisions. It’s intended to prevent a situation where you are required to bring two actions at the same time by claiming on your underinsured motorist coverage before you know whether in fact you need to do that, before you’ve exhausted the limits of other liability coverage.” 36 H.R. Proc. Pt. 8, 1993 Sess., pp. 2751-52.

Representative Staples went on to summarize the new limitation on the time for bringing claims under P.A. 93-77: “[T]hree years after the date of the accident, there needs to be notice provided. . . . [T]he insurance company still needs to be notified within three years in writing that there’s the possibility that a claim will be brought for underinsured motorist coverage and then, after that notice, there needs to be action brought within 180 days of the exhaustion of the limits of liability. So the insurance company will receive notice within three years that there may be an action brought.” Id., p. 2752.

With respect to the impact of the enactment of the bill on existing insurance policies, Representative Staples stated: “[I]f a contract provides for a period of time less than the three years which is permissible under this statute . . . the . . . provision that is less than three years, would ... be invalid and we would resort to the six year statute of limitations for regular contract actions in those cases.” Id., pp. 2753-54.

It is clear, therefore, from the foregoing recitation, that the chief proponent of P.A. 93-77 in the General Assembly considered the type of case with which we are faced—an insurance policy issued prior to the enactment of P.A. 93-77 containing a provision limiting the time for bringing a claim for underinsured motorist coverage to a period less than three years and a claim brought as a result of an accident that took place after the enactment of P.A. 93-77. It was Representative Staples’ understanding that, with the enactment of P.A. 93-77, any such provision would be automatically invalidated by operation of the new statute. After that invalidation, the only remaining limitation would be the normal six year limitation period applicable to contract actions in general, since insurance policies are, after all, contracts. Insurance companies would, of course, be free to place three year limitation provisions in any subsequent renewal contracts made after the passage of P.A. 93-77.

That interpretation of P.A. 93-77, § 2 (e), is further supported by an examination of § 3 of the same public act. The date referred to in § 3, December 8, 1992, coincides with the date of the Supreme Court’s decision in McGlinchey v. Aetna Casualty & Surety Co., supra, 224 Conn. 133. As the previously quoted portions from the debate on P.A. 93-77 in the General Assembly show, that was no coincidence. The whole purpose of the enactment of P.A. 93-77 was to overrule McGlinchey legislatively. Indeed, during the debate on the bill, Representative Dale W. Radcliffe posed the following question: “[T]he date, December 8,1992,1 take it that is the date of the McGlinchey decision in which the Supreme Court said that the contractual provision for bringing a suit within two years applied.” 36 H.R. Proc., supra, p. 2743. Representative Staples responded, “[T]hat is true.” Id., p. 2744.

“In construing a statute and determining the legislative intent, we may take judicial notice of the discussions on the floor of the General Assembly although such discussions are not controlling on statutory interpretation.” (Internal quotation marks omitted.) American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 195 n.8, 530 A.2d 171 (1987); see also Manchester Sand & Gravel Co. v. South Windsor, 203 Conn. 267, 276, 524 A.2d 621 (1987); Verrastro v. Sivertsen, 188 Conn. 213, 223 n.9, 448 A.2d 1344 (1982).

An additional consideration relevant here arises from the nature of the case before us as one in which the plaintiffs are seeking to avail themselves of underinsured motorist benefits from Allstate, for which Allstate was paid premiums. “[0]ur [under]insured motorist statute is remedial in nature and designed to protect people injured by [under]insured motorists. See, e.g., Streitweiser v. Middlesex Mutual Assurance Co., [219 Conn. 371, 377, 593 A.2d 498 (1991)]; American Universal Ins. Co. v. DelGreco, [supra, 205 Conn. 197]; Harvey v. Travelers Indemnity Co., [188 Conn. 245, 250-51, 449 A.2d 157 (1982)].” Williams v. State Farm Mutual Automobile Ins. Co., 229 Conn. 359, 373, 641 A.2d 783 (1994). Our Supreme Court has stated that “remedial statutes should be construed liberally in favor of those whom the law is intended to protect.” Dysart Corp. v. Seaboard Surety Co., 240 Conn. 10, 18, 688 A.2d 306 (1997); see also Doyle v. Metropolitan Property & Casualty Ins. Co., 252 Conn. 79, 93, 743 A.2d 156 (1999) (Palmer, J., dissenting); Cotto v. United Technologies Corp., 251 Conn. 1, 8-9, 738 A.2d 623 (1999).

The facts of this case indicate that the terms of the automobile insurance policy covering the plaintiffs and the timing of their loss have placed the plaintiffs in a situation in which it is unclear what limitation period applies to their claim. Had they brought their claim prior to May 20, 1993, § 3 of P.A. 93-77 would have saved their claim from failing by virtue of the limitation period in their policy. Their loss, however, did not take place until August 1,1993. Had they been insured under a contract of insurance issued after May 20, 1993, the effective date of P.A. 93-77, § 2 (e) would have required that the policy not contain the two year limitation period that their policy in fact contained. They were insured, however, under a contract issued on February 23,1993, for an effective period of six months. They thus fall into a relatively small gap left by the General Assembly between the savings clause of § 3 and the new provision of § 2 of P.A. 93-77.

Because it is unclear from the text of P.A. 93-77 what the legislature meant to have happen to claims brought under insurance policies that contained the newly prohibited limitation period where the time when the claim was filed did not place it within the savings clause contained in P.A. 93-77, we turn to an examination of how this court and our Supreme Court have interpreted P.A. 93-77 in other cases.

We begin by reiterating the general legislative purpose behind the very existence of uninsured and under-insured motorist coverage. “The public policy established by the uninsured motorist statute is that every insured is entitled to recover for the damages he or she would have been able to recover if the uninsured motorist had maintained a policy of liability insurance. . . . [Uninsured motorist coverage ... is statutorily intended to provide the . . . equivalent of automobile liability coverage prescribed by [law] .... To achieve this propose, no policy exclusions contrary to the statute of any of the . . . insureds are permissible since uninsured motorist coverage is intended by the statute to be uniform and standard motor vehicle accident ha-bility insurance for the protection of such insureds thereunder as if the uninsured motorist had carried the minimum limits of an automobile liability policy. . . . The public policy embodied in these statutes favors indemnification of accident victims unless they are responsible for the accident.” (Citations omitted; internal quotation marks omitted.) Harvey v. Travelers Indemnity Co., supra, 188 Conn. 249-50; see also Sandor v. New Hampshire Ins. Co., 241 Conn. 792, 800, 699 A.2d 96 (1997); Smith v. Safeco Ins. Co. of America, 225 Conn. 566, 573, 624 A.2d 892 (1993).

Our courts have also held that a similar purpose underlies underinsured motorist coverage, namely, to provide insurance protection to compensate for damages that would have been recoverable from the motorist at fault in an accident if that motorist had maintained an adequate policy of liability insurance. See Orkney v. Hanover Ins. Co., 248 Conn. 195, 204-205, 727 A.2d 700 (1999); Florestal v. Government Employees Ins. Co., 236 Conn. 299, 305-306, 673 A.2d 474 (1996); Lash v. Aetna Casualty & Surety Co., 236 Conn. 318, 327, 673 A.2d 84 (1996).

Consistent with the similar purposes of the two types of coverage, our Supreme Court has “often held that statutes and regulations that apply to uninsured motorist coverage equally apply to underinsured motorist coverage.” Buell v. American Universal Ins. Co., 224 Conn. 766, 769 n.1, 621 A.2d 262 (1993); Lumbermens Mutual Casualty Co. v. Huntley, 223 Conn. 22, 28 n.9, 610 A.2d 1292 (1992); General Accident Ins. Co. v. Wheeler, 221 Conn. 206, 210-11, 603 A.2d 385 (1992); Nationwide Ins. Co. v. Gode, 187 Conn. 386, 399-400, 446 A.2d 1059 (1982), overruled on other grounds, Covenant Ins. Co. v. Coon, 200 Conn. 30, 36 n.6, 594 A.2d 977 (1991).

The first case to consider the impact of P.A. 93-77 on claims brought under policies containing the newly banned limitation periods of less than three years was Aetna Life & Casualty Co. v. Braccidiferro, 34 Conn. App. 833, 643 A.2d 1305 (1994), cert. granted, 232 Conn. 901, 651 A.2d 743 (1995) (appeals withdrawn Sept. 1, 1995). In that case, this court stated that “the proponents intended that where, after the enactment of P.A. 93-77 ... an insurer failed to rewrite a policy that provided a two year limitation before an underinsured motorist claim arose under the policy, the two year provision would be invalidated and a claim for underinsured motorist benefits would be time barred only by the usual statute of limitations for contract actions in this state, six years.” Id., 842 n.6.

Allstate points to language in Braceidiferro in which this court stated that, in cases in which policies with the two year limitation would be involved in litigation prior to being rewritten to conform to the requirements of P.A. 93-77, “the three year limitation would be imposed upon the claim.” Id., 842. Allstate thus argues in its brief that this court “construed P.A. 93-77 to require the substitution of the new three year limitation period into a previously negotiated contract containing a two year limitation period . . . .”

Allstate overstates the impact on this case of the quoted language from Braceidiferro. The quoted language that Allstate points to is mere dictum as applied to this case, for this court concluded in Braceidiferro that it was § 3 of P.A. 93-77 that was at issue in that case, whereas in this case it is § 2 (e) that is at issue. That distinction is particularly relevant because § 3 of P.A. 93-77 concerns the status of “claim[s] or action[s] pending on December 8, 1992, or brought after said date and prior to the effective date of this act . . . .” This court concluded that, because of the pending appeal, the claim brought by the insured in Braccidi-ferro still was pending as of the effective date of P.A. 93-77 and so § 3 applied. By contrast, in this case, there is no question that there was no claim or action brought or pending prior to the effective date of the act for the simple reason that the accident giving rise to the present litigation did not occur until after the effective date of the act. Section 3 of P.A. 93-77 thus does not apply to this case.

That distinction, between § 3, which applied in the Braccidiferro case, and § 2 (e), which applies in this case, is quite important. Whereas § 3 provides that “[n]o . . . underinsured motorist claim or action . . . shall fail by reason of any contractual limitation in a motor vehicle insurance policy which limits the time within which such . . . action shall be commenced to a period of time less than that allowed ... by section 2 of this act,” § 2 (e) provides that “[n]o insurance company . . . may limit the time within which any suit may be brought ... to a period of less than three years from the date of accident . . . .” (Emphasis added.) The distinction between the two provisions is that the former directs trial courts (no action shall fail) whereas the latter directs insurance companies (no insurance company may limit the time). Thus, when this court stated in Braccidiferro that the three year limitation would be imposed on the claim; id.; it meant so only with respect to claims as to which § 3 applies.

Thus, because the two sections were written with different audiences in mind—§ 3 being directed to the courts and § 2 (e) being directed to insurance companies—we decline to extend the quoted language from Braccidiferro beyond the section of P.A. 93-77 with which the court was concerned in that case.

That distinction between §§ 2 and 3 of P.A. 93-77 is further supported by the Supreme Court’s holding in Serrano v. Aetna Ins. Co., 233 Conn. 437, 664 A.2d 279 (1995). In that case, our Supreme Court stated: “After we concluded, in McGlinchey . . . that [the claim was] barred by the two year limitation period, the legislature enacted § 3 of P.A. 93-77, which precludes an insurer from enforcing, for the category of cases enumerated therein, any contractual limitation period less than that allowed under § 38a-336, as amended by § 2 of P.A. 93-77.” Id., 443 n.7. The Supreme Court’s explicit language that § 2 “precludes an insurer from enforcing” the shorter limitation quite clearly indicates that it did not construe § 2 as actually altering insurance contracts or substituting new language for the newly prohibited limitation language. That statement by the Supreme Court thus clearly indicates that the legislature, in enacting P.A. 93-77, did not create a statute with retrospective application, as Allstate alleges, but merely created a statute that rendered inoperative, as of the effective date of the statute, any policy provisions inconsistent with the statute’s requirements.

Because we disagree with the trial court’s conclusion that P.A. 93-77, § 2, effected the substitution of a three year statute of limitation in the automobile insurance policy covering the plaintiff for the then recently prohibited two year limitation period for filing a claim, we agree with the plaintiffs that the court improperly determined that their claim was barred by the operation of § 38a-336 (g).

II

Having determined that the court improperly concluded that the plaintiffs’ claim was barred by operation of § 38a-336 (g), we next must address the issue of what, if any, limitation period properly applies to the plaintiffs’ claim against Allstate and whether they brought their action against Allstate within that period.

Having concluded in part I of this opinion that P.A. 93-77 “precludes an insurer from enforcing, for the category of cases enumerated therein, any contractual limitation period less than that allowed under § 38a-336, as amended by § 2 of P.A. 93-77”; id.; the limitation period (two years) contained in the plaintiffs’ automobile insurance policy has been rendered unenforceable by operation of P.A. 93-77. That being so, the only remaining statute of limitation applicable to this case is General Statutes § 52-576 (a).

Both this court and our Supreme Court have held that, in the absence of some other controlling statutory or contractual provision, § 52-576 (a) is the applicable statute of limitation for bringing claims under insurance policies. See Bayusik v. Nationwide Mutual Ins. Co., 233 Conn. 474, 485, 659 A.2d 1188 (1995); Tolbert v. Connecticut General Life Ins. Co., 58 Conn. App. 694, 698, 755 A.2d 293 (2000); Consiglio v. Transamerica Ins. Group, 55 Conn. App. 134, 137, 737 A.2d 969 (1999); Polizos v. Nationwide Mutual Ins. Co., 54 Conn. App. 724, 728, 737 A.2d 946, cert. granted on other grounds, 251 Conn. 916, 740 A.2d 865 (1999); Aetna Life & Casualty Co. v. Braccidiferro, supra, 34 Conn. App. 851; Wynn v. Metropolitan Property & Casualty Ins. Co., 30 Conn. App. 803, 807, 623 A.2d 66 (1993), aff'd, 228 Conn. 436, 635 A.2d 814 (1994). The undisputed facts in the record disclose that the accident that gave rise to this litigation occurred on August 1, 1993, and that this action was brought against Allstate on December 3, 1997, a date clearly within the six year limitation period set forth above.

Because the only statute of limitation applicable to the plaintiffs’ claim is that set forth in § 52-576 (a), namely, six years, and because the plaintiffs brought suit on that claim within six years of the date of the accident, we reverse the judgment of the court granting Allstate’s motion for summary judgment.

The judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

In this opinion DUPONT, J., concurred.

SPEAR, J.,

dissenting. I would affirm the judgment of the trial court. Our Supreme Court has declared that § 2 (e) of Public Acts 1993, No. 93-77 (P.A. 93-77), does not apply retroactively. Bayusik v. Nationwide Mutual Ins. Co., 233 Conn. 474, 483-85, 659 A.2d 1188 (1995). Relying on Bayusik, we held, in a case similar to this one, that the two year statute of limitations contained in the insurance contract barred the underinsured motorist claim. Bilodeau v. Aetna Casualty & Surety Co., 44 Conn. App. 698, 691 A.2d 1115, cert. granted, 241 Conn. 907, 704 A.2d 795 (1997) (appeal withdrawn December 10, 1997).

In Bayusik, after determining that the case was governed by § 3 of P.A. 93-77, the Supreme Court refused to apply § 2 (e) of P.A. 93-77. Bayusik v. Nationwide Mutual Ins. Co., supra, 233 Conn. 482-85. The court was “unpersuaded that § 2 (e) of P.A. 93-77, which sets forth the minimum limitation period for insurance policies under [General Statutes] § 38a-336, has retrospective applicability. [W]e have uniformly interpreted [General Statutes] § 55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only. . . . The legislature only rebuts this presumption when it clearly and unequivocally expresses its intent that the legislation shall apply retrospectively. . . . The retrospective application of § 2 (e) of P.A. 93-77 would alter the material terms of existing policies, thereby affecting substantive contractual rights and obligations that already had been settled under the express terms of those policies. . . . Although the legislature has the authority, within constitutional limits, to modify existing contractual relationships . . . we conclude that the legislature did not intend to achieve such a result under § 2 (e) of P.A. 93-77.

“Neither the language nor the legislative history of § 2 (e) of P.A. 93-77 supports the conclusion that the legislature intended it to have retrospective application. Unlike § 3 of P.A. 93-77, which by its express terms applies retroactively, § 2 (e) is devoid of language suggesting that it should likewise be applied to modify the terms of contracts already in existence. Indeed, the clarity with which the legislature manifested its intention that § 3 of P.A. 93-77 be given retrospective application strongly suggests that the legislature would have been explicit had it intended § 2 (e) to be similarly applied.” (Citations omitted; internal quotation marks omitted.) Bayusik v. Nationwide Mutual Ins. Co., supra, 233 Conn. 483-84.

After Bayusik was decided, we were presented with the question of whether a plaintiffs claim for underin-sured motorist benefits was barred by the two year time limit specified in the insurance policy where she brought suit on an underinsured motorist claim after the passage on May 20, 1993, of P.A. 93-77, but more than three years after the accident. Bilodeau v. Aetna Casualty & Surety Co., supra, 44 Conn. App. 699. In Bilodeau, the insurance policy required that any under-insured motorist claim be brought within two years from the date of the accident. Because that was not done, the trial court rendered summary judgment in favor of the defendant insurer, determining that the plaintiffs claim was time barred by the contractual limitation period. Id. In affirming the judgment of the trial court, we rejected the plaintiffs claim that § 2 (e) of P.A. 93-77 applied retrospectively “to invalidate all two year contractual limitations in claims brought after May 20, 1993 . . . .” Id., 701. We reviewed the language of our Supreme Court in Bayusik, which stated that § 2 (e) does not apply retroactively, and we concluded that “[i]f the legislature intended to invalidate all two year contractual limitations, it would have done so explicitly. . . . Because the plaintiffs claim is not governed by P.A. 93-77, § 3, and because § 2 (e) does not apply to retroactively invalidate the contractual two year time limit, the plaintiff cannot avail herself of the six year statute of limitations.” (Citation omitted.) Id., 702.

The only difference between this case and Bilodeau is that in Bilodeau, the accident occurred before the passage of P.A. 93-77, and here, the accident occurred after the passage of P.A. 93-77. That difference is irrelevant because the policies at issue were both in force prior to the passage of P.A. 93-77, and the plaintiffs’ actions and the insurers’ motions for summary judgment based on the contractual limitation periods were filed after the effective date of that act. Because the appeal was withdrawn after certification was granted in Bilodeau, the issue of whether the two year contractual limitation period remains valid under those circumstances has not been decided by our Supreme Court. Unless and until the Supreme Court decides otherwise, we should follow our precedent.

Moreover, I do not view an affirmance here as inequitable or harsh for two reasons. First, the plaintiffs had the benefit of the Supreme Court’s suggestion that “[enforcement of the two year time limitation does not impose an insuperable burden on an insured, because an action to recover pursuant to the uninsured motorists insurance policy can be timely filed even while claims against the tortfeasor are then being pursued in another forum. Continental Ins. Co. v. Cebe-Habersky, 214 Conn. 209, 571 A.2d 104 (1990), did not hold that two such lawsuits cannot be initiated simultaneously.” Hotkowski v. Aetna Life & Casualty Co., 224 Conn. 145, 150 n.6, 617 A.2d 451 (1992). Second, the plaintiffs exhausted the tortfeasor’s liability coverage on April 8, 1994. That left almost fifteen months of the two years provided for by the policy within which to bring an action claiming underinsured motorist benefits. By waiting until 1997 to bring such an action, the plaintiffs created the problem from which they now seek relief.

Accordingly, I respectfully dissent.

       In addition to Allstate, the plaintiffs’ complaint included as defendants American Fidelity Assurance Company and Brian Zullo. Before argument in this court, the plaintiffs settled with Zullo and withdrew their claims against American Fidelity Assurance Company. Unless otherwise indicated, we refer in this opinion to Allstate as the defendant.

       Public Acts 1993, No. 93-77, entitled, “An Act Concerning Uninsured and Underinsured Motorists Insurance Coverage,” provides in relevant part:
      “Sec. 2. Section 38a-336 of the general statutes is repealed and the following is substituted in lieu thereof ....
      “(e) No insurance company doing business in this state may limit the time within which any suit may be brought against it ... on the uninsured or underinsured motorist provisions of a motor vehicle policy to a period of less than three years from the date of accident . . . .”
      “Sec. 4. This act shall take effect from its passage.”

       Public Act 93-77, § 3, provides in relevant part: “Sec. 3, ... No uninsured or underinsured motorist claim or action pending on December 8, 1992, or brought after said date and prior to the effective date of this act, in which . . . a final judgment has not been rendered prior to the effective date of this act, shall fail by reason of any contractual limitation in a motor vehicle insurance policy which limits the time within which such claim shall be submitted ... or such action shall be commenced to a period of time less than that allowed under section 38a-336 of the general statutes, as amended by section 2 of this act. . . .”

       General Statutes § 52-576 (a) provides in relevant part: “No action . . . on any contract in writing, shall be brought but within six years after the right of action accrues . . . .”

       The defendant here, Allstate Insurance Company, claimed the benefit of the two year contractual limitation period as well as the three year limitation set out in P.A. 93-77.

       I do not understand the majority’s position that, although § 2 (e) of P.A. 93-77 does not apply retrospectively, it does render “inoperative” contractual limitation periods that are “inconsistent with the statute’s requirements.” Eliminating the contractual limitation period is a retroactive application of 8 2(e).


author: LANDAU, J.

text:
    LUIS A. RIVERA v. COMMISSIONER OF CORRECTION
    (AC 19406)
    Lavery, C. J., and Landau and Schaller, Js.

      Argued October 23, 2000
    officially released February 20, 2001

      Adele V. Patterson, assistant public defender, for the appellant (petitioner).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, was Jonathan C. Benedict, state’s attorney, for the appellee (respondent).
   Opinion

LANDAU, J.

The petitioner, Luis A. Rivera, appeals from the judgment of the habeas court dismissing his second amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly concluded that he was not denied his constitutional rights (1) to effective assistance of counsel in violation of the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut, and (2) to due process of law in violation of the fourteenth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut. We affirm the judgment of the habeas court.

The facts pertinent to this appeal are fully set forth in State v. Rivera, 223 Conn. 41, 42-43, 612 A.2d 749 (1992), and are summarized here for our resolution of this appeal. In 1986, the petitioner’s relationship with his long time live-in girlfriend, Camilia Bellido, ended. On August 18, 1989, the petitioner forced his way into Bellido’s apartment by kicking in the front door. The petitioner searched the apartment and found the victim, Aurelio Monge, in the shower. He held the victim at knifepoint and ordered him to leave the apartment. Still wet from the shower, the victim fell down the apartment stairs. The petitioner followed the victim down the stairs and attacked him with the knife. The victim died as a result of the attack.

On December 7, 1990, after a trial to a jury, the petitioner was convicted of murder in violation of General Statutes § 53a-54a (a), burglary in the first degree in violation of General Statutes § 53a-101 (a) and assault in the third degree in violation of General Statutes § 53a-61 (a) (3). The court committed the petitioner to the custody of the commissioner of correction for a term of thirty years. The petitioner’s conviction was affirmed on appeal. State v. Rivera, supra, 223 Conn. 42. The petitioner sought habeas corpus relief, and, following an evidentiary hearing, the habeas court dismissed the petitioner’s second amended petition for a writ of habeas corpus. Subsequently, the habeas court granted the petition for certification to appeal. Additional facts will be discussed where relevant to our resolution of the petitioner’s claims.

I

The petitioner first claims that the habeas court improperly dismissed his petition for a writ of habeas coipus because it failed to find that the petitioner was denied the effective assistance of trial and appellate counsel in violation of the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut. Specifically, the petitioner claims that he was denied effective assistance of counsel because (1) his trial counsel (a) failed to object to or request a correction of the court’s jury instruction on the defense of extreme emotional disturbance, (b) unduly limited the jury from considering the defense of extreme emotional disturbance in its broadest sense and (c) failed to provide the petitioner with a Spanish language interpreter during voir dire, and (2) his appellate counsel failed to raise a challenge to the court’s instruction on extreme emotional disturbance. We address these claims in turn.

Our standard of review is well established. In a habeas corpus appeal, the reviewing court may not disturb the historical facts found by the habeas court unless they are clearly erroneous. See Morrison v. Commissioner of Correction, 57 Conn. App. 145, 147, 747 A.2d 1058, cert. denied, 253 Conn. 920, 755 A.2d 215 (2000). Our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is, however, plenary. Fuller v. Commissioner of Correction, 59 Conn. App. 302, 303, 755 A.2d 380, cert. denied, 254 Conn. 943, 761 A.2d 760 (2000). The standard to be applied by habeas courts in determining whether an attorney effectively represented a criminal defendant is set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The petitioner must prove both deficient performance and actual prejudice. Bunkley v. Commissioner of Correction, 222 Conn. 444, 445, 610 A.2d 598 (1992). “Thus [the petitioner] must establish not only that his counsel’s performance was deficient, but that as a result thereof he suffered actual prejudice, namely, ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Id., quoting Strickland v. Washington, supra, 694. “In this context, a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different, does not require the petitioner to show that counsel’s deficient conduct more likely than not altered the outcome in the case. . . . Rather, it merely requires the prisoner to establish a probability sufficient to undermine confidence in the outcome.” (Internal quotation marks omitted.) Andrews v. Commissioner of Correction, 45 Conn. App. 242, 246-47, 695 A.2d 20, cert. denied, 242 Conn. 910, 697 A.2d 364 (1997). If a reviewing court can dispose of an ineffectiveness of counsel claim on the ground of lack of prejudice, it need not review whether trial counsel’s representation was, in fact, deficient. Aillon v. Meachum, 211 Conn. 352, 362, 559 A.2d 206 (1989).

A

The petitioner first claims that the habeas court improperly concluded that his trial counsel’s failure to object to or request a correction of the court’s instruction on the defense of extreme emotional disturbance did not deprive him of his right to effective assistance of counsel. We disagree.

The following additional facts and procedural history are necessary for our resolution of this claim. At trial, the petitioner submitted to the court a proposed jury instruction for the defense of extreme emotional disturbance. At the hearing on his habeas corpus petition, the petitioner argued that the trial court’s instruction improperly added to the defense of extreme emotional disturbance the element of disproving the defense of mental disease or defect. Furthermore, the petitioner argued that while giving its instruction, the court commented that the petitioner had not presented evidence disproving the defense of mental disease or defect, thereby implying that the jury had to find that the petitioner had not satisfied his burden of proof for the defense of extreme emotional disturbance.

In its review of the petitioner’s claim, the habeas court found, inter alia, that the trial transcript revealed virtually no evidence to support a finding of extreme emotional disturbance and that the petitioner’s principle defense was that he did not stab the victim. The habeas court, thereafter, concluded that the petitioner had not satisfied his burden of proving that he was prejudiced by counsel’s failure to object to or request a correction of the court’s instruction.

We must evaluate the petitioner’s claim “with reference to the entire charge and the totality of the evidence . . . .” Walker v. Commissioner of Correction, 223 Conn. 411, 416, 611 A.2d 413 (1992). After reviewing the entire charge and the evidence and applying our standard of review, we conclude that the habeas court was correct in concluding that there was virtually no evidence to support a finding of extreme emotional disturbance. Accordingly, we conclude that the habeas court was correct in its determination that the petitioner did not meet his burden of proving that he was prejudiced by counsel’s failure to object to or seek a correction of the court’s instruction.

The petitioner also claims that the habeas court improperly concluded that he was not prejudiced by trial counsel’s reference to “heat of passion” in his closing argument, which, the petitioner claims, prevented the jury from considering the defense of extreme emotional disturbance in its broadest sense. As we already have noted, the habeas court found that there was virtually no evidence presented at trial to support the defense of extreme emotional disturbance. As we also have noted, our review of the record and transcript in this case supports that finding. We therefore con-elude that the petitioner could not have been prejudiced by any misstatement that his trial counsel may have made with regard to the defense. See Aillon v. Meachum, supra, 211 Conn. 362; Nieves v. Commissioner of Correction, 51 Conn. App. 615, 620-22, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999).

B

The petitioner next claims that the habeas court improperly concluded that trial counsel’s failure to provide the petitioner with a Spanish language interpreter did not deny the petitioner his right to effective assistance of counsel. Specifically, the petitioner argues that without an interpreter he was unable to work with counsel during selection of his jury. We disagree.

Again, in our review of the petitioner’s claim, we must adopt the facts found by the habeas court unless they are clearly erroneous. See Morrison v. Commissioner of Correction, supra, 57 Conn. App. 147. We apply plenary review to decide whether, under the facts, counsel’s performance was deficient and resulted in actual prejudice to the petitioner. See Fuller v. Commissioner of Correction, supra, 59 Conn. App. 303.

The habeas court found that the petitioner understood English well enough to work with counsel during voir dire. On the basis of the habeas court’s finding, we conclude that the petitioner has not proven that he was prejudiced by counsel’s failure to provide a Spanish language interpreter during voir dire.

C

The petitioner also claims that the habeas court improperly concluded that appellate counsel’s failure to raise a challenge to the court’s instruction on the defense of extreme emotional disturbance did not deny the petitioner his right to effective assistance of counsel. We disagree.

The habeas court found that the claim of instructional impropriety had not been preserved at trial. The habeas court, citing State v. Foreshaw, 214 Conn. 540, 546, 572 A.2d 1006 (1990), concluded that the petitioner would not have been entitled to review of his claim on direct appeal and, therefore, that he was not prejudiced by counsel’s failure to raise the claim. We conclude, on the basis of the habeas court’s finding of fact, that the petitioner was not prejudiced by counsel’s failure to raise a claim concerning the court’s instruction on direct appeal.

II

The petitioner claims that the habeas court improperly refused to review his assertions that (1) the court’s instruction on the defense of extreme emotional disturbance denied the petitioner due process of law in violation of the fourteenth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut, and (2) trial counsel’s failure to provide the petitioner a Spanish language interpreter denied the petitioner his right to participate in his defense in violation of the fourteenth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut.

In its memorandum of decision, the habeas court, pursuant to Evans v. Commissioner of Correction, 37 Conn. App. 672, 693, 657 A.2d 1115, cert. denied, 234 Conn. 912, 660 A.2d 354 (1995), and Commissioner of Correction v. Rodriquez, 222 Conn. 469, 476, 610 A.2d 631 (1992), dismissed the petitioner’s due process claims by concluding that all of the petitioner’s due process claims were subsumed by the ineffective assistance of counsel claims. On appeal, the petitioner argues that the habeas court improperly refused to address these claims. We conclude that there is no merit to this argument. The habeas court decided each of the petitioner’s claims in terms of ineffective assistance of counsel and refused to address separately “the petitioner’s claims under the rubric of due process.” Evans v. Commissioner of Correction, supra, 693. “A habeas court need not . . . separately address due process claims subsumed by claims of ineffective assistance of counsel. The habeas court’s finding that the petitioner was not prejudiced by any of the alleged improprieties of trial and appellate counsel necessarily disposed of the petitioner’s due process claims as well.” Id.

The judgment is affirmed.

In this opinion the other judges concurred.

       In fact, the habeas court found that other than testimony that the petitioner looked upset and angry during the incident, there was no evidence to support the defense.

       In support of its finding, the habeas court cited (1) to a section of the trial transcript that contains a colloquy between the state’s attorney and the petitioner where the petitioner indicated that he had the ability to read English, (2) to testimony of trial counsel at the habeas hearing that he and the petitioner had a limited understanding of one another and (S) to a letter that the petitioner had written in English.
      The petitioner argues that his use of an interpreter for the remainder of his trial is proof that he did not understand English well enough to work with counsel during voir dire. On the basis of the evidence relied on by the habeas court, we cannot conclude that its finding was clearly erroneous. Therefore, in accordance with our standard of review, we adopt the court’s finding.

       In State v. Foreshaw, supra, 214 Conn. 546, our Supreme Court held that an unpreserved claim respecting a very similar charge on extreme emotional disturbance was not reviewable. The court rejected review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because “claims of error pertaining to the inadequacy of instructions on an affirmative defense do not raise a constitutional question.” (Internal quotation marks omitted.) State v. Foreshaw, supra, 546. Review in Foreshaw also was rejected under the plain error rule of Practice Book § 4185, now § 60-5, because the challenged language, when viewed in the context of the entire charge, did not cause such a “manifest injustice to the defendant so as to impair the effectiveness or integrity of [the] trial.” (Internal quotation marks omitted.) State v. Foreshaw, supra, 547.

       The respondent argues that review of the petitioner’s claim that the trial court’s insl,ructions were improper is barred because it was not raised on direct appeal and, therefore, can be reviewed only if it is found that the petitioner meets the cause and prejudice test set forth in Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). We need not address whether Wainwright bars review in this case because, as we discuss in part II of this opinion, t he habeas court properly found that the petitioner’s due process claims were subsumed in his ineffective assistance of counsel claims.

       In support of his claim, the petitioner also invokes article first, § 19, of the constitution of Connecticut. We simply note that the petitioner did not raise that claim in his second amended petition for a writ of habeas corpus.