source: Caselaw Access Project

author: LAVERY, C. J.

license: Public Domain

text:
    NATALIA GARCIA v. ITT HARTFORD INSURANCE COMPANY
    (AC 22151)
    Lavery, C. J., and Foti and Dranginis, Js.
    Submitted on briefs June 5
    officially released September 24, 2002

      Richard L. Zayas filed a brief for the appellant (plaintiff).

      Giovanna Trocchi Giardina filed a brief for the appellee (defendant).
   Opinion

LAVERY, C. J.

We address in this case whether the uninsured-underinsured motorists statute, General Statutes § 38a-336 (b), and the regulations adopted thereunder, bar recovery as a matter of law in multitort-feasor accidents in which the claimant settles with an identified tortfeasor for more than the amount of her uninsured or underinsured motorists coverage. The plaintiff, Natalia Garcia, appeals from the judgment rendered in favor of the defendant, ITT Hartford Insurance Company, following the trial court’s granting of the defendant’s motion for summary judgment. We are guided by the principles set forth in Collins v. Colonial Penn Ins. Co., 257 Conn. 718, 778 A.2d 899 (2001) (en banc), and reverse the judgment of the trial court.

The parties do not disagree on the facts relevant to the plaintiffs appeal, but diverge on the issue of whether the defendant is entitled to judgment as a matter of law. A review of the record and briefs reveals the following. At approximately 4:50 p.m. on January 22,1997, the plaintiff was riding in an automobile driven by Luz Rivera that was traveling north along Wethers-field Avenue in Hartford behind an unidentified automobile. Suddenly, the unidentified automobile made a sharp left turn onto Goodrich Street, causing Stanley Ziemaicki, who was driving an automobile south on Wethersfield Avenue, to swerve into the northbound lane and hit Rivera’s vehicle. The plaintiff sustained injuries as a result.

The plaintiff made a claim for damages with Zie-maicki’s automobile insurer, National Grange Insurance Company. She also made a claim with Rivera’s automobile insurer, the defendant, as a surrogate for the driver of the unidentified automobile. Part C of the defendant’s insurance policy states in relevant part: “Uninsured/ Underinsured Motorists Coverage . . . B. ‘Insured' as used in this Part means ... 2. Any other person occupying your covered auto. . . . C. ‘Uninsured motor vehicle' means a land motor vehicle ... 2. Which is a hit-and-run vehicle whose operator or owner cannot be identified and which hits or which causes an accident resulting in bodily injury without hitting . . . c. your covered auto.” (Emphasis in original.) See also id., 732. National Grange Insurance Company settled with the plaintiff for Ziemaicki’s policy limit of $100,000.

On May 8, 1998, the plaintiff brought a complaint against the defendant seeking further damages under Rivera’s uninsured motorists policy. The defendant’s answer denied most of the allegations in the complaint and set forth five special defenses, claiming that the plaintiffs action failed as a matter of law and for failure to comply with the policy terms. On June 22, 1998, the defendant filed an apportionment complaint against Ziemaicki, alleging that he was partially or entirely at fault for the accident.

The defendant thereafter filed a motion for summary judgment on the basis of its special defenses. The defendant first claimed that the action failed as a matter of law because the $100,000 settlement set off Rivera’s $50,000 uninsured motorist policy. The defendant’s second claim was that the plaintiff had violated the terms of the policy by entering into the settlement without the defendant’s consent. Citing a case from our Supreme Court; Buell v. American Universal Ins. Co., 224 Conn. 766, 621 A.2d 262 (1993); one from this court; Fahey v. Safeco Ins. Co. of America, 49 Conn. App. 306, 714 A.2d 686 (1998); and one from the Superior Court; Hanz v. Dragone Enterprises, Superior Court, judicial district of Fairfield, Docket No. 350501 (July 28,2000) (27 Conn. L. Rptr. 547); the trial court concluded that “because the uninsured motorists coverage of the defendant in the amount of $50,000 is effectively reduced to zero because of the plaintiffs receipt of $100,000 for her injuries, the defendant’s motion for summary judgment is granted.” The court did not reach the consent issue in its opinion.

The plaintiff appealed, claiming that the court improperly concluded that the defendant was entitled to set off the uninsured motorists coverage by the settlement without an assessment of damages at trial.

Summary 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.” Practice Book § 17-49. Although the parties agree on the facts, we conclude that the defendant was not entitled to judgment as a matter of law.

“Because the trial court rendered judgment for the [defendant] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Kronberg v. Peacock, 67 Conn. App. 668, 672, 789 A.2d 510, cert. denied, 260 Conn. 902, 793 A.2d 1089 (2002). Following our own interpretation of the statute, regulations and policy, as well as guidance from our Supreme Court in Collins, we conclude that the court’s conclusions are not legally correct.

“Because statutory interpretation is a question of law, our review is de novo. . . . When we construe a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Furthermore, [w]e presume that laws are enacted in view of existing relevant statutes . . . because the legislature is presumed to have created a consistent body of law. . . . We construe each sentence, clause or phrase to have a purpose behind it. . . . In addition, we presume that the legislature intends sensible results from the statutes it enacts. . . . Therefore, we read each statute in a manner that will not thwart its intended purpose or lead to absurd results.” Collins v. Colonial Penn Ins. Co., supra, 257 Conn. 728-29. As with statutory interpretation, we interpret the terms in an insurance contract to give effect to the intent of the parties. See Kitmirides v. Middlesex Mutual Assurance Co., 65 Conn. App. 729, 731-32, 783 A.2d 1079 (2001), aff'd, 260 Conn. 336, 796 A.2d 1185 (2002), citing Pacific Indemnity Ins. Co. v. Aetna Casualty & Surety Co., 240 Conn. 26,29,688 A.2d 319 (1997). Construction of an insurance contract is afforded de novo review; Fahey v. Safeco Ins. Co. of America, supra, 49 Conn. App. 317; and the terms of the policy are given their ordinary meaning. Kitmirides v. Middlesex Mutual Assurance Co., supra, 732.

General Statutes § 38a-336 (b) provides in relevant part: “An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured and underinsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured and underinsured motorist coverage, exceed the limits of the insured’s uninsured and underinsured motorist coverage. . . .” Additionally, the regulations adopted thereunder; see General Statutes § 38-334; provide in relevant part: “(a) Coverage. The insurer shall undertake to pay on behalf of the insured all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured or underin-sured motor vehicle because of bodily injury sustained by the insured caused by an accident involving the uninsured or underinsured motor vehicle. . . . (d) Limits of liability ... (1) The limit of the insurer’s liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of section 14-112 of the general statutes, except that the policy may provide for the reduction of limits to the extent that damages have been . . . (A) paid by or on behalf of any person responsible for the injury . . . .” Regs., Conn. State Agencies § 38a-334-6.

The defendant also refers us to its policy, which, in the section titled “Uninsured/Underinsured Motorists Coverage,” states in relevant part: “B. The limit of liability shall be reduced by all sums: (1) Paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible. . . .” (Emphasis in original.)

“The public policy established by the uninsured motorist statute is to ensure that an insured recovers damages he or she would have been able to recover if the uninsured motorist had maintained a policy of liability insurance.” Sandor v. New Hampshire Ins. Co., 241 Conn. 792, 800, 699 A.2d 96 (1997). We also note, however, that “the insurer is not the alter ego of the tortfea-sor”; (internal quotation marks omitted) Vitti v. Allstate Ins. Co., 245 Conn. 169, 187, 713 A.2d 1269 (1998); and that the “amount of overall benefits available to a plaintiff be equal to the amount of coverage available from a tortfeasor with an equivalent policy.” (Emphasis in original.) Id., 189.

The precise issue here is whether, in a multiple tortfeasor context, the injured party is precluded as a matter of law from recovering under an uninsured motorists policy where she has settled with one tortfeasor for an amount greater than the uninsured motorists coverage against which she is claiming. That issue has been litigated at the trial level with varying outcomes. We find the recent decision in Martanis v. Liberty Mutual Fire Ins. Co., Superior Court, judicial district of Ansonia-Milford, Docket No. 0065733 (February 8, 2002) (31 Conn. L. Rptr. 488), to be persuasive. There, the court was faced with an almost identical factual (plaintiff involved in three car accident with one insured and one uninsured motor vehicle) and procedural (plaintiffs uninsured motorists insurance carrier standing in shoes of uninsured motorist sought summary judgment, arguing plaintiffs $450,000 settlement with insured motorist’s insurer entirely setoff $200,000 uninsured motorist benefits) scenario. Denying the defendant’s motion for summary judgment, the Martanis court concluded in a thoughtful and well reasoned memorandum of decision that the apportionment analysis of Collins precluded a setoff, and, in the alternative, that any setoff should be made only after a fact finder assesses damages. After our own analysis, we reach the same conclusions as did the Martanis court.

We first conclude that the rationale of our Supreme Court in Collins v. Colonial Penn Ins. Co., supra, 257 Conn. 718, requires, in the multitortfeasor context, a fact finder to apportion the plaintiffs damages and that any setoff apply to only a percentage of the damages rather than to a dollar for dollar reduction. The plaintiff in Collins was involved in a three car accident with one identified and one unidentified motor vehicle. Id., 721. She brought an action against the identified driver, as well as her own insurance carrier acting as a surrogate for the driver of the unidentified automobile. Id. After the start of the juiy trial, the plaintiff settled with her insurance carrier for $95,000 of her $100,000 policy. Id. & n.4. The jury returned a verdict for the plaintiff in the amount of $86,340. Id., 725.

The identified driver appealed, arguing that the court improperly allowed the plaintiff a double recovery by refusing to set off the amount of the settlement and improperly refused the defendant’s request to instruct the jury, pursuant to General Statutes § 52-572h, to apportion the percentage of negligence between the identified and unidentified drivers. Collins v. Colonial Penn Ins. Co., supra, 257 Conn. 725-26. The court reversed the judgment and remanded the case for a new trial, concluding that it was plain error for the jury not to have been instructed on apportionment. Id., 726-27.

Although it did not reach the setoff question, the Collins court did address several issues that are relevant to our disposition of the plaintiffs appeal. Reconciling the uninsured motorist statutes with § 52-572h, the Collins court ultimately concluded that the legislature “did not intend to create a separate law of damages for uninsured motorist claims different from that which exists for traditional negligence awards.” Id., 742. To reach that conclusion, the court first noted that Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 27, 699 A.2d 964 (1997), established that in situations in which the uninsured motorist carrier is acting as a surrogate for an unidentified driver, “the relationship between the underinsured motorist carrier and the defendant may be viewed as analogous to that of joint tortfeasors . . . .” Collins v. Colonial Penn Ins. Co., supra, 257 Conn. 734. Second, the court distinguished between a jury award and a settlement. It stated that the “underlying rationale” of § 52-572h (n) “is that, rather than a settlement reducing the amount of the jury . . . award dollar-for-dollar . . . the amount of the award is reduced by the settling party’s percentage of negligence. Thus, if a claimant settles with one potential tortfeasor, the plaintiff is allowed to keep the amount of that settlement, but the award against the remaining tortfeasor is reduced by the percentage of negligence attributable to the settling tortfeasor.” Id., 734-35. Furthermore, a “plaintiffs settlement with one tortfeasor in a multitort-feasor context . . . does not necessarily represent a claimant’s fair, just and reasonable damages but, rather, represents, in part, the parties’ assessments of the risks of litigation.” Id., 735.

Although it does not reach exactly the issue that we have here, we conclude that Collins is instructive. Just as a defendant is entitled to a fact finder’s determination of apportionment and damages in this context, so, too, is the claimant. Here, of course, such an apportionment could come only after trial. Accordingly, we conclude that the court improperly concluded that the defendant was entitled to judgment as a matter of law. Any payment by the defendant would be predicated on a finding of culpability and should be reduced proportionately by the percentage of the unidentified driver’s fault.

The defendant attempts to distinguish Collins on the facts. It notes that whereas the plaintiff in that case settled with her uninsured motorist carrier and proceeded to trial with the claim against the identified tortfeasor, we are faced with the opposite situation. See id., 720-21.

The defendant correctly identifies the procedural distinction between that case and this one. We disagree that it makes a difference. Under the defendant’s hypothesis, the order in which a party settles or pursues claims in the multitortfeasor context could control the amount the plaintiff would be entitled to recover. Just as our Supreme Court concluded in Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 30-31, that “it would be bizarre to say that the law permits a double recovery depending on the order of litigation of the plaintiffs claims”; so, too, would it be bizarre for a claimant’s recoveiy to be restricted because she settled under the uninsured motorist policy first. It also could have the impermissible effect of discouraging settlements, which is contrary to our public policy. See Collins v. Colonial Penn Ins. Co., supra, 257 Conn. 736.

Although we note that the appellate decisions relied on by the court in this case involved instances in which the amount of the uninsured-underinsured motorist policy was greater than the payment received from the policies at issue; see Buell v. American Universal Ins. Co., supra, 224 Conn. 768-69 (plaintiff sought compensation from $100,000 underinsurance policy following receipt of $31,500 from insureds’ policies); Fahey v. Safeco Ins. Co. of America, supra, 49 Conn. App. 308 (plaintiff sought compensation from $200,000 underinsurance policy following receipt of $100,000); we also note that both of those cases involved instances in which setoff occurred only after a fact finder had determined the extent of injuries. See Buell v. American Universal Ins. Co., supra, 769 (arbitration panel concluded plaintiff suffered $78,000 damages); Fahey v. Safeco Ins. Co. of America, supra, 308 (jury found plaintiff suffered $90,064.77 damages). Additionally, Buell predated our Supreme Court’s decision in Collins, and Fahey v. Safeco Ins. Co. of America, supra, 307, involved a single tortfeasor. In any event, we conclude that they are inapposite. Also inapposite is Roy v. Centennial Ins. Co., 171 Conn. 463, 370 A.2d 1011 (1976), which the defendant argues is directly on point. Whereas the parties in that case had agreed that setoff would apply if the state insurance regulations and the language of the insurance policy at issue were valid; id., 466; no such agreement was made here.

Even if we were to determine that the apportionment analysis was inapplicable here, we still would conclude that any setoff would be required to be made after a fact finder’s assessment of damages. As the Collins court noted, there is a difference between a fact finder’s award and a settlement. Collins v. Colonial Penn Ins. Co., supra, 257 Conn. 734. The defendant argues in its brief that the purpose of the uninsured motorist law is “to ensure that certain minimum protections are afforded to all motorists” and, because the plaintiff settled, she received everything to which she was entitled. Such an argument, however, overlooks that the defendant is standing in the shoes of the unidentified tortfeasor, whom the plaintiff has not settled with in any amount. Furthermore, our reading of the defendant’s policy leads us to conclude that it aims to prevent duplicate payments, not to prevent any payment in contexts such as this one. The “Limit of Liability,” found in part A, “Liability Coverage,” states: “C. No one will be entitled to receive duplicate payments for the same elements of loss under this coverage and: 1. . . . [‘Uninsured/Underinsured Motorists Coverage’].” Similarly, the “Limit, of Liability,” found in part C, “Uninsured/Underinsured Motorists Coverage,” states: “B. The limit of liability shall be reduced by all sums: 1. Paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under [‘Liability Coverage’] . . . C. No one will be entitled to receive duplicate payments for the same elements of loss under this coverage and [‘Liability Coverage’].” (Emphasis in original.) Accordingly, we conclude that the defendant’s argument is unavailing.

The judgment is reversed and the case is remanded with direction to deny the defendant’s motion for summary judgment and for further proceedings in accordance with law.

In this opinion the other judges concurred.

       The defendant does not raise the plaintiffs failure to obtain its consent to settle with the identified tortfeasor as an alternate ground for affirmance. Accordingly, we consider the claim to be abandoned. See Sandvig v. A. Dubreuil & Sons, Inc., 68 Conn. App. 79, 89, 789 A.2d 1012, cert. granted on other grounds, 260 Conn. 931, 799 A.2d 296 (2002). In any event, we disagree with any argument that the defendant’s policy terms and § 38a-334-6 (c) (1) of the Regulations of Connecticut, State Agencies categorically require an insurer’s consent as a precondition for a plaintiff to settle. As we stated recently, the rationale underlying the consent to settle provision “is nothing more than part of the process of exhausting the tortfeasor’s liability protection. Specifically, the consent provision allows the insurer to ensure that the settlement offered by the tortfeasor’s insurance provider does, in fact, exhaust the limits of the tortfeasor’s coverage.” Tracy v. Allstate Ins. Co., 70 Conn. App. 726, 732, 799 A.2d 1109 (2002). It follows, therefore, that when an injured party exhausts the tortfeasor’s coverage, the consent of the insurer is not required.

       General Statutes § 52-572h provides in relevant part: “(a) For the purposes of this section: (1) ‘Economic damages’ means compensation determined by the trier of fact for pecuniary losses including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneco-nomic damages; (2) ‘noneconomic damages’ means compensation determined by the trier of fact for all nonpecuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering; (3) ‘recoverable economic damages’ means the economic damages reduced by any applicable findings including but not limited to set-offs, credits, comparative negligence, additur and remittitur, and any reduction provided by section 52-225a; (4) ‘recoverable noneconomic damages’ means the non-economic damages reduced by any applicable findings including but not limited to set-offs, credits, comparative negligence, additur and remittitur.
      “(b) In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person or the person’s legal representative to recover damages resulting from personal injury, wrongful death or damage to property if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought including settled or released persons under subsection (n) of this section. The economic or noneconomic damages allowed shall be diminished in the proportion of the percentage of negligence attributable to the person recovering which percentage shall be determined pursuant to subsection (f) of this section.
      “(c) In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party’s proportionate share of the recoverable economic damages and the recoverable noneco-nomic damages except as provided in subsection (g) of this section.
      “(d) The proportionate share of damages for which each party is liable is calculated by multiplying the recoverable economic damages and the recoverable noneconomic damages by a fraction in which the numerator is the party’s percentage of negligence, which percentage shall be determined pursuant to subsection (f) of this section, and the denominator is the total of the percentages of negligence, which percentages shall be determined pursuant to subsection (f) of this section, to be attributable to all parties whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section. Any percentage of negligence attributable to the claimant shall not be included in the denominator of the fraction.
      “(e) In any action to which this section is applicable, the instructions to the jury given by the court shall include an explanation of the effect on awards and liabilities of the percentage of negligence found by the jury to be attributable to each party.
      “(f) The jury or, if there is no jury, the court shall specify: (1) The amount of economic damages; (2) the amount of noneconomic damages; (3) any findings of fact necessary for the court to specify recoverable economic damages and recoverable noneconomic damages; (4) the percentage of negligence that proximately caused the injury, death or damage to property in relation to one hundred per cent, that is attributable to each party whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section; and (5) the percentage of such negligence attributable to the claimant.
      “(g) (1) Upon motion by the claimant to open the judgment filed, after good faith efforts by the claimant to collect from a liable defendant, not later than one year after judgment becomes final through lapse of time or through exhaustion of appeal, whichever occurs later, the court shall determine whether all or part of a defendant’s proportionate share of the recoverable economic damages and recoverable noneconomic damages is uncollectible from that party, and shall reallocate such uncollectible amount among the other defendants in accordance with the provisions of this subsection. (2) The court shall order that the portion of such uncollectible amount which represents recoverable noneconomic damages be reallocated among the other defendants according to their percentages of negligence, provided that the court shall not reallocate to any such defendant an amount greater than that defendant’s percentage of negligence multiplied by such uncollectible amount. (3) The court shall order that the portion of such uncollectible amount which represents recoverable economic damages be reallocated among the other defendants. The court, shall reallocate to any such other defendant an amount equal to such uncollectible amount of recoverable economic damages multiplied by a fraction in which the numerator is such defendant’s percentage of negligence and the denominator is the total of the percentages of negligence of all defendants, excluding any defendant whose liability is being reallocated. (4) The defendant whose liability is reallocat ed is nonetheless subject to contribution pursuant to subsection (h) of this section and to any continuing liability to the claimant on the judgment.
      “(h) (1) A right of contribution exists in parties who, pursuant to subsection (g) of this section are required to pay more than their proportionate share of such judgment. The total recovery by a party seeking contribution shall be limited to the amount paid by such party in excess of such party’s proportionate share of such judgment.
      “(2) An action for contribution shall be brought within two years after the party seeking contribution has made the final payment in excess of such party’s proportionate share of the claim.
      “(n) A release, settlement or similar agreement entered into by a claimant and a person discharges that person from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides. However, the total award of damages is reduced by the amount of the released person’s percentage of negligence determined in accordance with subsection (f) of this section. . . .”


author: DRANGINIS, J.

text:
    GEORGE STEVENSON ET AL. v. PEERLESS INDUSTRIES, INC., ET AL.
    (AC 22326)
    Dranginis, Flynn and West, Js.

      Submitted on briefs June 7
    officially released October 1, 2002

      M. Leonard Caine III filed a brief for the appellants (plaintiffs).

      Jonathan D. Berchem filed a brief for the appellees (named defendant et al).
   Opinion

DRANGINIS, J.

The plaintiffs, George Stevenson and Euganna P. Stevenson, appeal from the judgment rendered by the trial court following the granting of the motion to dismiss that was filed by the defendants Peerless Industries, Inc., and Peerless Sales Company (Peerless). The issue presented is whether the court properly determined that the plaintiff could not bring this action under the accidental failure of suit statute, General Statutes § 52-592. We conclude that the court improperly decided that the plaintiff could not avail himself of § 52-592 and, accordingly, reverse the judgment of the trial court in part.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. In 1996, while taking a break in the employees’ lounge of the automobile parts store in Hartford where he worked, the plaintiff was injured when a wall mounted television fell on him. The plaintiff filed an action on August 8, 1998, against Peerless and Barr, Inc. (Barr), alleging, in pertinent part, that Peerless had negligently manufactured, designed and constructed the stand that held the television, and that Barr negligently and improperly had attached the television stand’s brackets to the wall. At the time that the action was filed, the plaintiff had relocated from Connecticut and was, and continues to be, a resident of the state of Pennsylvania.

In November, 1998, Peerless filed a request to revise the complaint. The plaintiff failed to respond to the request to revise. In December, 1998, Peerless sent discovery requests to the plaintiff, which the plaintiff also failed to answer. Pursuant to Practice Book § 14-3, Peerless accordingly filed a motion for a judgment of nonsuit for failure to comply with discovery requests, which the court granted July 8, 1999. The plaintiff did not respond to the motion for a judgment of nonsuit, nor did he attempt to open the judgment. Barr separately pursued similar actions and also obtained a judgment of nonsuit.

The plaintiff commenced a second action on July 6, 2000 setting forth the identical allegations and claims, with the exception of adding another section that invoked § 52-592. The complaint was served on Peerless and on Barr. In bringing his action pursuant to the accidental failure of suit statute, the plaintiff alleged that he had not received notice of the entry of nonsuit. Peerless filed a motion to dismiss the complaint, arguing that the plaintiff could not avail himself of the accidental failure of suit statute because his failure to prosecute the case diligently was not due to mere mistake, inadvertence or excusable neglect. Raising the same argument, Barr also filed a separate motion to dismiss the plaintiffs complaint.

In opposition to the motions to dismiss, the plaintiff contended that he had failed to respond to the discovery requests due to miscommunication with one of his attorneys, who practiced in Pennsylvania and had been retained to handle the plaintiffs workers’ compensation claim. The plaintiff argued that he could not comply adequately with the discovery requests without receiving certain documents and assistance from Pennsylvania counsel. The plaintiff attached copies of facsimiles that he had sent to Pennsylvania counsel seeking assistance to comply with discovery. Apparently, Pennsylvania counsel misunderstood the time frame for answering discoveiy requests in Connecticut. The plaintiff also argued that once he received the answers to the discoveiy requests from Pennsylvania counsel, counsel’s secretary failed to recognize them as such and failed to prepare a motion to open the judgment, as instructed. Moreover, the plaintiff claimed that the mistakes that occurred in pursuing his case did not constitute “egregious conduct” and that he therefore was entitled to avail himself of the accidental failure of suit statute.

The court, McLachlan, J., granted Barr’s motion to dismiss on December 18, 2000. In dismissing the plaintiffs case, the court concluded that “[c]ounsel’s failure to respond to the discovery requests was not caused by mistake, excusable neglect or inadvertence. It was caused by inaction. . . . Counsel has not explained in any way the nonsuit for failure to plead. . . . The plaintiffs did nothing to respond to numerous pleadings, motions or requests filed by Barr. This is not inadvertence, but negligent and dilatory conduct. . . . [Section 52-592] does not provide the plaintiffs protection due to the pattern of behavior that led to the dismissal of the plaintiffs’ case.” The court, Martin, J., subsequently granted Peerless’ motion to dismiss on July 31, 2001, adopting and incorporating Judge McLachlan’s reasoning and conclusion that was utilized in deciding Barr’s motion to dismiss. The plaintiff then filed motions to reargue, which were denied. This appeal followed. This court subsequently granted Barr’s motion to dismiss as untimely the plaintiff’s appeal as to Barr. Barr, therefore, is not involved in this appeal.

On appeal, the plaintiff claims that he was entitled to avail himself of the accidental failure of suit statute, and, therefore, that the trial court improperly granted Peerless’ motion to dismiss. We agree and reverse the judgment of the trial court as to Peerless.

We first set forth our standard of review governing motions to dismiss. “Our standard of review of a trial court’s findings of fact and conclusions of law in connection with a motion to dismiss is well settled. A finding of fact will not be disturbed unless it is clearly erroneous. . . . [W]here 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 .... Thus, our review of the trial court’s ultimate legal conclusion and resulting [granting] of the motion to dismiss will be de novo. ... A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts.” (Internal quotation marks omitted.) Henriquez v. Allegre, 68 Conn. App. 238, 242, 789 A.2d 1142 (2002).

As previously stated, § 52-592, the accidental failure of suit statute, provides in relevant part: “(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . for any matter of form . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.” Warranting a broad construction, § 52-592 (a) essentially is remedial in nature. Ruddock v. Burrowes, 243 Conn. 569, 575, 706 A.2d 967 (1998). “Deemed a ‘saving statute,’ § 52-592 enables plaintiffs to bring anew causes of action despite the expiration of the applicable statute of limitations. . . . Although § 52-592 should be broadly construed because of its remedial nature, it should not be construed ‘so broadly as to hamper a trial court’s ability to manage its docket by dismissing cases for appropriate transgressions.’ ” (Citation omitted.) Pepitone v. Serman, 69 Conn. App. 614, 619, 794 A.2d 1136 (2002).

In the seminal case of Ruddock v. Burrowes, supra, 243 Conn. 576-77, our Supreme Court instructed that “[w]hether [§ 52-592] applies cannot be decided in a factual vacuum. To enable a plaintiff to meet the burden of establishing the right to avail himself or herself of the statute, a plaintiff must be afforded an opportunity to make a factual showing that the prior dismissal was a ‘matter of form’ in the sense that the plaintiffs noncompliance with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect.” A determination of the applicability of § 52-592 depends on the particular nature of the conduct involved. Pepitone v. Serman, supra, 69 Conn. App. 619.

We conclude that the court improperly determined that the plaintiff could not avail himself of § 52-592 (a) and therefore that the court improperly granted Peerless’ motion to dismiss. The plaintiffs actions in this case constitute the type of excusable neglect to which our Supreme Court referred in Ruddock and did not rise to the level of egregious conduct. This is not a situation beset by years of unnecessaiy litigation and “cumulative transgressions.” Gillum v. Yale University, 62 Conn. App. 775, 783, 773 A.2d 986, cert. denied, 256 Conn. 929, 776 A.2d 1146 (2001). Rather, as the plaintiff explained, after filing his action in 1998, he failed to respond timely to the request to revise and to discovery demands, due, in part, to miscommunication with counsel in Pennsylvania.

The cases in which we have reviewed, and affirmed, challenges to a court’s decision that a plaintiff could not invoke § 52-592 (a) reveal fact patterns vastly different from the present case. For example, in Skibeck v. Avon, 24 Conn. App. 239, 587 A.2d 166, cert. denied, 219 Conn. 912, 593 A.2d 138 (1991), we affirmed the court’s rendering of summary judgment in an action that had been filed pursuant to § 52-592 as a result of the repeated dismissals of the case and the plaintiffs egregious conduct during the course of numerous years. In Skibeck, the plaintiff originally had filed an action in 1980 regarding an accident that had occurred in January, 1979. Id., 240. After eleven years of litigation and the trial court’s dismissal of the case three times for failure to appear and failure to prosecute, we concluded that “[t]o allow this action to continue at this time would defeat the basic purpose of the public policy that is inherent in statutes of limitation, i.e., to promote finality in the litigation process.” Id., 243.

In Gillum v. Yale University, supra, 62 Conn. App. 787, a case on which Peerless relies, we also affirmed the court’s rendering of summary judgment on the ground that the plaintiffs could not bring the action pursuant to § 52-592 (a). The plaintiffs in Gillum had filed an action in April, 1991, alleging medical malpractice that had occurred from the fall of 1988 through the winter of 1989. Id., 777. After the court rendered three judgments of dismissal, one in 1992, another in 1993 and the third in 1997, the plaintiffs in January, 1998, filed an action pursuant to § 52-592 (a). Id., 777-78. In affirming the judgment dismissing that action, we agreed that the case was “beset by lackadaisical behavior by the plaintiffs at every turn. ... In addition to the fact that the plaintiffs’ conduct occasioned three dismissals, which hampered the movement of the case toward a resolution, the plaintiffs further hindered the progress of the case by continually running deadlines to their limits before filing motions to reopen or complying with court orders. Even after the third dismissal, the plaintiffs’ counsel failed to communicate promptly to the court an explanation for his conduct. . . . That pattern of conduct, evidenced by the court file, far surpasses mistake, inadvertence or excusable neglect.” Id., 783-84.

Similarly, in Pepitone v. Serman, 69 Conn. App. 616, the court twice rendered a judgment of dismissal on the ground of dormancy, in 1997 and in 1999 because of the plaintiffs failure to close the pleadings. The plaintiff in Pepitone, who originally filed an action in 1996 arising from events that occurred in 1993, had received several notices from the court that failure to close the pleadings would result in the dismissal of his case. Id., 615-16. Moreover, at the time of the second dismissal, the plaintiff had failed to reply to the defendant’s special defenses and counterclaim, nor did he proffer any explanations for his conduct. Id., 616.

As previously stated, courts should construe § 52-592 broadly. The plaintiffs conduct here differs from and does not rise to the level of egregious conduct that transpired in the aforementioned cases. In contrast to the years of delay and numerous motions filed in the previously discussed cases, the plaintiffs action that led to the judgment of dismissal, namely the failure to respond to a discovery request, occurred in the time span of six months. Significantly, it should be noted that this case does not involve a situation that resulted in considerable delay or inconvenience to the court or to opposing parties. See Ruddock v. Burrowes, supra, 243 Conn. 576 n.12 (“[n]onappearances that interfere with proper judicial management of cases, and cause serious inconvenience to the court and to opposing parties, are categorically different from [for example] a mere failure to respond to a notice of dormancy pursuant to Practice Book [§ 14-3]”). Moreover, the plaintiff has provided a credible excuse for his failure to respond, that is, miscommunication with his Pennsylvania counsel. It does not appear that the plaintiff failed to respond to Peerless’ request for dilatory reasons or as a delay tactic, particularly when viewed in light of the fact that this case has not been plagued by years of unnecessary litigation. We further note that the plaintiff asserts that he is prepared to comply with all requests.

We therefore conclude that this situation invokes the type of “excusable neglect” that our Supreme Court provided for in Ruddock. The court improperly dismissed this matter and concluded that the plaintiff could not avail himself of the accidental failure of suit statute, § 52-592.

The judgment dismissing the action as against Peerless Industries, Inc., and Peerless Sales Company is reversed and the case is remanded with direction to reinstate it to the docket and for further proceedings in accordance with law.

In this opinion the other judges concurred.

       The plaintiffs are married. Euganna P. Stevenson is a party to this appeal because she claimed a loss of consortium as a result of personal injuries sustained by George Stevenson. For convenience, we refer in this opinion to George Stevenson as the plaintiff.

       We refer in this opinion to the defendants Peerless Industries, Inc., and Peerless Sales Company collectively as Peerless.

       General Statutes § 52-212 (a) provides in relevant part that “[a]ny judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months . . . .” See also Practice Book § 17-43 (a).

       General Statutes § 52-592 (a) provides: “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”

       Apparently, the plaintiff withdrew his claim that he had failed to receive notice of the entry of nonsuit.

       We note, as the trial court also observed, that although a motion to dismiss may not be the appropriate procedural vehicle for asserting that an action is not saved by General Statutes § 52-592, our Supreme Court has held that a court properly may consider amotion to dismiss in such circumstances when the plaintiff does not object to the use of the motion to dismiss. Henriquez v. Allegre, 68 Conn. App. 238, 241 n.6, 789 A.2d 1142 (2002), citing Capers v. Lee, 239 Conn. 265, 269-70 n.9, 684 A.2d 696 (1996). In the present case, because the plaintiff did not object to the use of a motion to dismiss, the court properly decided the motion on the merits.

       The court dismissed the case under its dormancy dismissal program in December, 1992, after the plaintiff had failed to respond to the defendant’s request to revise the complaint dated June, 1991. Gillum v. Yale University, supra, 62 Conn. App. 777. The court, however, granted the plaintiffs’ motion to open the judgment in April, 1993. Id. The defendant then filed a second mol ion to dismiss for failure to comply with the court’s order of compliance with production requests. Id. After the plaintiffs’ counsel failed to appear at Ihe court’s short calendar hearing on the molion, the court granted the defendant’s second motion to dismiss in June, 1993. Id., 778. The court then granted the plaintiffs subsequent motion to reopen in March, 1994. Id. When the plaintiffs counsel failed to appear at a mandatory pretrial counsel in January, 1997, the court rendered a judgment of dismissal. Id.


author: MIHALAKOS, J.

text:
    CAROL MCENERNEY v. UNITED STATES SURGICAL CORPORATION ET AL.
    (AC 22437)
    Mihalakos, Dranginis and Peters, Js.
    Argued May 3
    officially released October 1, 2002

      Jonathan H. Dodd, for the appellant (plaintiff).

      Richard W. Lynch, for the appellees (defendants).
   Opinion

MIHALAKOS, J.

The plaintiff, Carol McEnemey, appeals from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner (commissioner). On appeal, the plaintiff claims that (1) the board improperly affirmed the commissioner’s determination that she is not entitled to benefits under General Statutes § 31-308a because she relocated to Florida and (2) the board improperly enforced the requirement in § 31-308a that she be willing and able to perform work in Connecticut because that requirement impermissibly restricts her right to interstate migration in violation of the constitution of the United States and the constitution of Connecticut. We affirm the decision of the board.

The following undisputed facts and procedural history are relevant to the plaintiffs appeal. The plaintiff suffered a work-related injury on January 25, 1994, while employed by the defendant United States Surgical Corporation. As a result, the plaintiff sought workers’ compensation benefits and was awarded permanent partial disability benefits, which expired on January 31, 1997. The plaintiff received additional benefits pursuant to § 31-308a in the amount of $271.05 per week from February 1,1997, to August 31,1997, when she relocated to Florida. Because the plaintiff believed that she was entitled to 15.72 more weeks of those benefits despite her relocation outside of Connecticut, she filed a claim with the workers’ compensation commission. The commissioner found that because the plaintiff now lives in Florida, she does not meet the requirement set forth in § 31-308a (a) that the benefits “shall be available only to employees who are willing and able to perform work in this state.” The plaintiff appealed to the board, which affirmed the decision of the commissioner. Additional facts will be set forth as necessary.

Before addressing the merits of the plaintiffs claims, we set forth the standards governing our review of decisions by the board. “[W]hen a decision of a commissioner is appealed to the [board], the [board] is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts. . . . The commissioner has the power and duty, as the trier of fact, to determine the facts. . . . The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Our scope of review of the actions of the . . . [board] is similarly limited.” (Internal quotation marks omitted.) Gartrell v. Dept. of Correction, 259 Conn. 29, 36, 787 A.2d 541 (2002).

“It is well established that [a]lthough not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and review board. ... A state agency is not entitled, however, to special deference when its determination of a question of law has not previously been subject to judicial scrutiny. . . . Where ... [a workers’ compensation] appeal involves an issue of statutory construction that has not yet been subjected to judicial scrutiny, this court has plenary power to review the administrative decision.” (Internal quotation marks omitted.) Tower v. Miller Johnson, Inc., 67 Conn. App. 71, 74, 787 A.2d 26 (2001); see also Donahue v. Southington, 259 Conn. 783, 787, 792 A.2d 76 (2002) (“traditional deference accorded to an agency’s interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial scrutiny [or to] ... a governmental agency’s time-tested interpretation”).

I

The plaintiff first claims that the board improperly affirmed the commissioner’s finding that she is not entitled to benefits under § 31-308a because she relocated to Florida. Specifically, she argues that because she unsuccessfully sought employment in Connecticut for more than one year prior to the time that she relocated to Florida, she demonstrated that she was “willing and able to perform work in this state,” within the meaning of § 31-308a (a). In the alternative, she argues that she is entitled to benefits under § 31-308a (b) even if she no longer qualifies for benefits under § 31-308a (a). We disagree.

Because no Connecticut appellate court has had the opportunity to examine the relevant statutory language at issue, we employ our well established canons of statutory construction. “[0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.” (Internal quotation marks omitted.) Alvarado v. Black, 248 Conn. 409, 414, 728 A.2d 500 (1999). “A cardinal rule of statutory construction is that where the words of a statute are plain and unambiguous the intent of the [drafters] in enacting the statute is to be derived from the words used. . . . Where the court is provided with a clearly written rule, it need look no further for interpretive guidance.” (Internal quotation marks omitted.) Board of Education v. Naugatuck, 70 Conn. App. 358, 376, 800 A.2d 517 (2002).

Indeed, “[w]e are constrained to read a statute as written . . . and we may not read into clearly expressed legislation provisions which do not find expression in its words . . . .” (Citation omitted; internal quotation marks omitted.) Giaimo v. New Haven, 257 Conn. 481, 494, 778 A.2d 33 (2001). “In interpreting the language of a statute, the words must be given their plain and ordinary meaning and their natural and usual sense unless the context indicates that a different meaning was intended.” (Internal quotation marks omitted.) In re Darlene C., 247 Conn. 1, 10, 717 A.2d 1242 (1998); see also General Statutes § 1-1 (a).

We conclude that the language of § 31-308a is plain and unambiguous. Section 3 l-308a permits the commissioner to award additional benefits to a claimant whose earning capacity has been affected adversely by a work-related accident once a specific award of workers’ compensation benefits has been exhausted. Subsection (a) of § 31-308a, however, limits the availability of such an award, providing in relevant part: “Additional benefits provided under this section shall be available only to employees who are willing and able to perform work in [Connecticut].” (Emphasis added.)

In the present case, the board held that “[entitlement for temporary total and partial disability benefits generally depends upon a claimant’s continuing inability to work and continuing wage loss; similarly, eligibility for § 31-308a benefits depends upon a claimant’s sustained satisfaction of the criteria in that statute.” The plaintiff argues that because she unsuccessfully sought work prior to relocating to Florida, she was “willing” to perform work in Connecticut. We agree with the board.

The use of the word “are” in § 31-308a (a) evinces the legislature’s intent that a claimant must presently fulfill the “willing and able” requirement to receive benefits. If the claimant ceases to be “willing and able” to work in Connecticut, she no longer satisfies the statute. In addition, § 31-308a (a) requires that a claimant be both willing and able to perform work in Connecticut. A look at the ordinary meaning of the words reveals that “willing” means “done ... by choice”; Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993); and “able” means “having sufficient power ... or resources to accomplish an object.” Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993).

We conclude that the board properly found that the plaintiff was neither willing nor able to perform work in the state of Connecticut. Although we recognize that the plaintiff did actively seek employment in Connecticut before her relocation, she chose to relocate to Florida of her own volition. Furthermore, the plaintiff relinquished her residency in Connecticut and works part time in Florida. The relocation to Florida clearly demonstrates the plaintiffs unwillingness to perform work in Connecticut. Furthermore, to find that she is able to work in Connecticut while residing in Florida is patently unrealistic.

The plaintiff argues, in the alternative, that she is entitled to benefits under § 31-308a (b) even if she no longer qualifies for benefits under subsection (a) because she relocated to Florida. She interprets subsection (b) as a provision that confers on the commissioner the discretion to award additional benefits, unfettered by the limitations in subsection (a). The plaintiff’s interpretation does not comport with the express language of the statute. Contrary to the plaintiff’s argument, the express language of § 31-308a (b) restricts the commissioner’s authority to compensate even those employees who meet the criteria in subsection (a) to circumstances “only when the nature of the injury and its effect on the earning capacity of an employee warrant additional compensation.” On the basis of the foregoing, the board properly affirmed the commissioner’s decision to discontinue the plaintiffs additional benefits pursuant to § 31-308a.

II

Next, the plaintiff claims that the requirement in § 31-308a that she be willing and able to perform work in Connecticut impermissibly restricts her right to interstate migration in violation of the constitution of the United States. Specifically, she argues that the requirement is a penalty for relocating out of Connecticut that is unsupported by an appropriate state interest and impinges on her right to migrate to Florida. We disagree.

In the present case, the plaintiff is seeking additional workers’ compensation benefits after having voluntarily relocated to Florida. Relying on Memorial Hospital v. Maricopa County, 415 U.S. 250, 258, 94 S. Ct. 1076, 39 L. Ed. 2d 306 (1974), the plaintiff argues that a law that penalizes those who exercise their right to travel is subject to strict scrutiny analysis and must be justified by a compelling state interest. Further, she contends that the law fails that test because merely saving money is insufficient to demonstrate a compelling state interest.

“[T]he constitutional right to travel from one State to another is firmly embedded in our jurisprudence.” (Internal quotation marks omitted.) Saenz v. Roe, 526 U.S. 489, 498, 119 S. Ct. 1518, 143 L. Ed. 2d 689 (1999), citing United States v. Guest, 383 U.S. 745, 757, 86 S. Ct. 1170, 16 L. Ed. 2d 239 (1966); see also 16B Am. Jur. 2d, Constitutional Law § 612 (1998). The right to travel “protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.” Saenz v. Roe, supra, 500. Hence, the “right to travel” implicates how a citizen is treated in her new state of residence. See id. (limitation on welfare benefits received by new residents for first year of residency unconstitutional); see also Memorial Hospital v. Maricopa County, supra, 415 U.S. 250 (one year residency requirement before new indigent resident could receive medical benefits at county’s expense unconstitutional); Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969) (one year residency requirement before new resident could receive welfare benefits unconstitutional), overruled in part on other grounds, Edelman v. Jordan, 415 U.S. 651, 670-71, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974). Such is not the case here.

In fact, the United States Supreme Court previously addressed an issue similar to that presented by the plaintiff in this case. In Califano v. Torres, 435 U.S. 1, 98 S. Ct. 906, 55 L. Ed. 2d 65 (1978), the claimants argued that the provisions of the Social Security Act, which make benefits for aged, blind and disabled persons under the supplemental security income program payable only to residents of the United States, violate their constitutional right to travel. The claimants lost those benefits after relocating from the northeastern United States to Puerto Rico. Id., 3. The court expressly declined to extend the right to travel to encompass one’s right to relocate to another state and yet avail oneself of the benefits to which one was entitled in one’s former state. Id., 4. The court recognized that it “has never held that the constitutional right to travel embraces any such doctrine . . . .” Id. The court further stated that “[s]uch a doctrine would apply with equal force to any benefits a State might provide for its residents, and would require a State to continue to pay those benefits indefinitely to any person who had once resided there. And the broader implications of such a doctrine in other areas of substantive law would bid fair to destroy the independent power of each State under our Constitution to enact laws uniformly applicable to all of its residents.” Id., 4-5.

Because the plaintiffs “right to travel” is not implicated, her claim that § 3 l-308a violates the constitution of the United States because it is not necessary to accomplish a compelling state interest has no merit.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-308a provides in relevant part: “(a) In addition to the compensation benefits provided by section 31-308 for specific loss of a member or use of the function of amember of the body, or any personal injury covered by this chapter, the commissioner, after such payments provided by said section 31-308 have been paid for the period set forth in said section, may award additional compensation benefits .... Additional benefits provided under this section shall be available only to employees who are willing and able to perform work in this state.

      “(b) Notwithstanding the provisions of subsection (a) of this section, additional benefits provided under this section shall be available only when the nature of the injury and its effect on the earning capacity of an employee warrant additional compensation." (Emphasis added.)

       Although the plaintiff claims a violation of her federal and state constitutional rights, she has not presented an adequate and independent state constitutional analysis, and, therefore, we limit our review to her federal constitutional claim. See Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 565 n.16, 715 A.2d 46 (1998); see also State v. Eady, 249 Conn. 431, 435 n.6, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999).

       Sedgwick of Connecticut, Inc., the workers’ compensation insurer for the named defendant, also is a defendant in this appeal.

       The plaintiff relocated to Florida during the first week of September, 1997. Her relocation to Florida was voluntary and motivated, in part, by the possibility of living with her son there and escaping the inclement Connecticut weather.

       The parties stipulated before the commissioner that the plaintiff would have been entitled to 15.72 more weeks of benefits had she not relocated to Florida.

       We do note that there are circumstances in which a nonresident’s commute to work in Connecticut would be plausible, such as for those living in New York, New Jersey, Rhode Island and the surrounding areas.

       The board refused to address the plaintiffs claim that General Statutes § 31-308a is unconstitutional because it determined that it lacked jurisdiction to consider claims concerning the constitutionality of statutes, citing Giaimo v. New Haven, supra, 257 Conn. 490 n.8; see also Caldor, Inc. v. Thornton, 191 Conn. 336, 342-44, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985); Tufaro v. Pepperidge Farm,, Inc., 24 Conn. App. 234, 236, 587 A.2d 1044 (1991).

       The defendants claimed that the legislative history of General Statutes § 31-308a reveals that the purpose of restricting additional benefits to employees who are willing and able to perform work in this state was to reduce the rising costs of the workers’ compensation system.

       Absent a fundamental right being at issue or the presence of a suspect class, whether a statute is constitutional is subject to the rational basis test. See City Recycling, Inc. v. State, 247 Conn. 751, 760, 725 A.2d 937 (1999). Because neither party presented this court with an analysis of General Statutes § 31-308a under the rational basis test, we end our discussion here. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . We will not review claims absent law and analysis.” (Citation omitted; internal quotation marks omitted.) State v. Jones, 67 Conn. App. 25, 27 n.2, 787 A.2d 43 (2001).


text:
    MARIO MALLOZZI, JR. v. NATIONWIDE MUTUAL INSURANCE COMPANY
    (AC 21717)
    Lavery, C. J., and Schaller and Hennessy, Js.
    Argued June 10
    officially released October 1, 2002

      Charles W. Fleischmann, for the appellant (plaintiff).

      Charles E. Hickey, for the appellee (defendant).
   Opinion

LAVERY, C. J.

The plaintiff, Mario Mallozzi, Jr., appeals from the summary judgment rendered by the trial court in favor of the defendant, Nationwide Mutual Insurance Company. The court granted the defendant’s motion for summary judgment after finding that there was no genuine issue of material fact and that the defendant was entitled to judgment as a matter of law because the automobile insurance policy at issue clearly and unambiguously did not provide the plaintiff coverage under the circumstances. On appeal, the plaintiff contends that the insurance contract at issue is ambiguous, and, therefore, the court improperly granted the defendant’s motion for summary judgment. We agree with the trial court and conclude that the motion for summary judgment was properly granted. Accordingly, we affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant. On May 20, 1997, the plaintiff was involved in an automobile accident resulting in his being named a defendant in four civil actions that were brought by parties seeking monetary damages. The plaintiff was driving a pickup truck that was owned by Mallozzi Builders, Inc. (Mallozzi Builders). The plaintiff thereafter brought this action seeking a declaratory judgment as to his rights to insurance coverage for his potential and alleged liability resulting from the accident. The policy under which he sought coverage was a personal automobile policy issued by the defendant to the plaintiffs mother, Floria Mallozzi.

At the time of the accident, the plaintiff lived with his parents. The plaintiffs father, Mario Mallozzi, Sr., was employed by Mallozzi Builders. The truck was separately insured under a business automobile insurance policy, with a total liability limit of $500,000, also issued by the defendant.

Floria Mallozzi’s personal automobile policy provided liability coverage to the policyholder, the policyholder’s resident spouse and resident relatives when driving a vehicle scheduled or listed in the insurance policy declarations. The truck was not a scheduled or listed vehicle. Under certain circumstances, however, the policy insures covered drivers while they are operating “other motor vehicles.” The parties disagree as to the meaning of the provision detailing that coverage.

That provision states in relevant part that “coverage also applies to certain other motor vehicles as follows .... 3. A motor vehicle owned by a non-member of your household .... a) This applies only to policies issued to individual persons (not organizations) and while the vehicle is being used by you or a relative. It protects the user, and any person or organization, except as noted below in b), who does not own the vehicle but is legally responsible for its use. b) This does not apply to losses involving a motor vehicle . . . (2) owned, rented or leased by an employer of an insured . . . .” (Emphasis added.)

At the hearing on its motion for summary judgment and on appeal, the defendant claims that, pursuant to the clear language of that provision, the plaintiff is not covered by the personal automobile policy. It argues that this is so because, at the time of the accident, the plaintiff was driving a truck owned by Mallozzi Builders, which, while “a non-member” of the Mallozzi household, was the employer of Mario Mallozzi, Sr., “an insured” under the policy. The plaintiff, on the other hand, argues that this provision, read in conjunction with other policy language, is ambiguous and thus should be read to afford him coverage. We agree with the defendant that the policy clearly denies the plaintiff coverage under the circumstances.

“Our standard of review of a trial court’s granting of summary judgment is well established. Pursuant to Practice Book § 17-49, summary 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. Such questions of law are subject to plenary appellate review.” (Internal quotation marks omitted.) Mytych v. May Dept. Stores Co., 260 Conn. 152, 158-59, 793 A.2d 1068 (2002).

In the present case, the plaintiff does not claim that there are genuine issues of material fact. Instead, he argues that summary judgment in favor of the defendant was inappropriate because the court improperly interpreted the insurance contract, as a matter of law, to disallow him coverage. Particularly, he claims that for various reasons, the provision at issue is ambiguous and therefore must be construed so as to afford him coverage. We disagree.

“It is the function of the court to construe the provisions of the contract of insurance. . . . Our review of the trial court’s decision of this issue is de novo. Unlike certain other contracts . . . where . . . the intent of the parties and thus the meaning of the contract is a factual question subject to limited appellate review . . . construction of a contract of insurance presents a question of law for the court which this court reviews de novo.” (Citation omitted; internal quotation marks omitted.) Bonito v. Cambridge Mutual Fire Ins. Co., 64 Conn. App. 487, 489, 780 A.2d 984, cert. denied, 258 Conn. 926, 783 A.2d 1028 (2001).

“Well established principles guide our interpretation of the policy. The [interpretation of an insurance policy, like the inteipretation of other written contracts, involves a determination of the intent of the parties as expressed by the language of the policy. . . . The determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy. ... It is axiomatic that a contract of insurance must be viewed in its entirety, and the intent of the parties for entering it derived from the four corners of the policy. . . . The policy words must be accorded their natural and ordinary meaning . . . [and] any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy. ... A necessary predicate to this rule of construction, however, is a determination that the terms of the insurance policy are indeed ambiguous. . . . The fact that the parties advocate different meanings of the [insurance policy] does not necessitate a conclusion that the language is ambiguous.” (Emphasis added; internal quotation marks omitted.) Id., 490.

The plaintiff argues first that the phrase “insured,” as used in part 3 (b) (2) of the “use of other motor vehicles” provision, is ambiguous and therefore should not be read to include Mario Mallozzi, Sr., and thus to deny coverage on the ground that the plaintiff was driving a vehicle owned by the employer of an “insured.” We are not convinced.

According to the definitions section of the policy, “ ‘INSURED’ means one who is described as entitled to protection under each coverage.” That section also provides that “ ‘YOU’ and ‘YOUR’ mean the policyholder and spouse if living in the same household,” and “ ‘RELATIVE’ means one who regularly lives in your household and who is related to you by blood, marriage or adoption . . . .’” The policy’s table of contents lists its four types of “coverages,” one of which is “auto liability,” which includes the “use of other motor vehicles” provision at issue.

By its plain terms, the “use of other motor vehicles” provision extends coverage to certain other vehicles “while the vehicle is being used by you or a relative.” Under the clear language of the definitions section, “you” means the policyholder, Floria Mallozzi, and her resident spouse, Mario Mallozzi, Sr., and “relative” includes her son, the plaintiff, who was living with his parents at the time of the accident. Those three individuals thus are described as entitled to protection under the auto liability coverage portion of the policy; therefore, pursuant to the definitions section of the policy, they all are “insureds.”

The plaintiff asks us to disregard that clear terminology and instead to engage in a convoluted analysis on the basis of language in the family compensation coverage section of the policy to conclude that “insured,” as used in the auto liability coverage section, is ambiguous. The family compensation provision cited by the plaintiff provides coverage for “persons other than you and a relative . . . [wjhile occupying your auto . . . .” The plaintiff argues, therefore, that “hypothetically, anyone else could be an insured” and that “[t]he constellation of persons who are ‘any insured’ is everyone.” Consequently, he claims, there would never be any coverage for any of the Mallozzis while driving a “nonowned . . . automobile if the owner had any employees since any one of the employees could, like Mallozzi, Sr., be ‘an insured’ . . . .”

It is a well established principle of insurance law that “policy language will be construed as laymen would understand it . . . .” (Internal quotation marks omitted.) Israel v. State Farm Mutual Automobile Ins. Co., 269 Conn. 503, 508, 789 A.2d 974 (2002). Further, the meaning of policy language ordinarily is drawn from the context in which it is used; Peerless Ins. Co. v. Gonzalez, 241 Conn. 476, 484-85, 697 A.2d 680 (1997); here, within the auto liability coverage section. As such, we cannot conclude that the language would convey to the average policyholder an expectation of coverage on the basis of the reasoning now advanced by the plaintiff or even that a policyholder would find the applicable provision ambiguous. Although ambiguous provisions are construed in favor of insureds, “[t]here is no presumption that language in insurance contracts is inherently ambiguous. Only if the language manifests some ambiguity do we apply the rule that ambiguous insurance contracts are to be construed in favor of insureds and to provide coverage.” (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 545, 791 A.2d 489 (2002). We conclude that the plaintiffs argument is unreasonable and that, as used in the auto liability coverage section of the policy, “insured” unambiguously refers to Mario Mallozzi, Sr. Because the exclusion at issue applies when the nonowned automobile is owned by the employer of an insured, and because the pickup truck in this case was owned by the employer of Mario Mallozzi, Sr., the court properly found that the policy did not afford the plaintiff coverage.

The plaintiff also claims ambiguity in the word “an,” as used in the phrase, “[coverage] does not apply to losses involving a motor vehicle . . . owned ... by an employer of an insured.” (Emphasis added.) The plaintiff argues that “an insured” means “the insured,” rather than “any insured,” and that “the insured” contemplates only the particular insured who is operating the vehicle at the time of the accident, in this case the plaintiff. Therefore, he claims, because it is not the plaintiffs employer that owned the truck, but that of a different insured, the exclusion is inapplicable. Again, we conclude that the phraseology used in the policy is not ambiguous.

Dictionaries identify “a” and “an” as “indefinite” articles and define “indefinite” as “not defining or identifying,” “not precise” or “having no fixed limit or amount.” See, e.g., Merriam-Webster Dictionary (3d Ed. 1974); see also American Heritage Dictionary of the English Language (New College Ed. 1981) (“indefinite article” is one “that does not fix or immediately fix the identity of the noun modified”); see also Builders Service Corp. v. Planning & Zoning Commission, 208 Conn. 267, 282, 545 A.2d 530 (1988) (“[i]n statutory construction, unlike the definite article ‘the,’ which particularizes the words it precedes and is a word of limitation, the indefinite article ‘a’ has an ‘indefinite or generalizing force’ ”). Thus, as stated by the trial court, “an” means “any” and therefore, “the contract provides, clearly and unambiguously, that the exclusion extends generally to a vehicle of an employer of . . . any insured,” in this case, to the truck owned by the employer of Mario Mallozzi, Sr., regardless of who was driving the truck.

This interpretation also is supported by the choice of language in part 3 (a) of the “use of other motor vehicles” section, which defines the coverage to which the exclusions of part 3 (b) apply. Part 3 (a) states that part 3 (b) “applies . . . while the vehicle is being used by you or a relative. It protects the user . . . .” (Emphasis added.) The choice of a different term in part 3 (b) (2), “an insured,” rather than “the user,” implies that a different, broader meaning was contemplated.

“A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings.” (Internal quotation marks omitted.) Jack A. Halprin, Inc. v. Hermitage Ins. Co., 58 Conn. App. 598, 601, 753 A.2d 954 (2000). We agree that the phrase “an insured” clearly means “any insured” and that the court properly concluded that the exclusion at issue applied.

The plaintiff argues finally that the punctuation used in part 3 (a) of the “use of other motor vehicles” provision implies that the exceptions set forth in part 3 (b) are not intended to apply to “users” of vehicles such as the plaintiff. Part 3 (a) states in relevant part that coverage “applies . . . while the vehicle is being used by you or a relative. It protects the user, and any person or organization, except as noted below in b), who does not own the vehicle but is legally responsible for its use.” (Emphasis added.) The plaintiff claims that the limiting clause, “except as noted below in b),” modifies only the immediately preceding phrase, “any person or organization,” and does not modify “the user,” meaning the plaintiff. We are not convinced because it is clear from the format of part three and, more obviously, from the actual content of the exceptions listed in part 3 (b), which contemplate various uses of nonowned vehicles by the policyholder or the policyholder’s family members, i.e., users, that the interpretation suggested by the plaintiff is untenable. As conceded by the plaintiff, “punctuation is not to be permitted to control meaning [in an insurance policy] where the text is clear . . . .” Travelers Indemnity Co. v. Pray, 204 F.2d 821, 824 (6th Cir. 1953).

Because there were no genuine issues of material fact and because the insurance policy provision at issue clearly operated to disallow coverage to the plaintiff while he was driving a vehicle owned by his father’s employer, we conclude that the court properly rendered summary judgment in favor of the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       When the court heard argument on the defendant’s motion for summary judgment, it was unclear whether the truck was owned by Mallozzi Builders or by the plaintiffs father, Mario Mallozzi, Sr. Because the parties agree that the policy does not afford coverage in the event of the latter, that issue of fact is immaterial.

       The defendant does not deny that coverage is available under the business automobile insurance policy.

       The entire provision regarding use of other motor vehicles is as follows:
      “USE OF OTHER MOTOR VEHICLES
      “This coverage also applies to certain other motor vehicles as follows:
      “1. A motor vehicle you do not own, while it is used in place of your auto for a short time. Your auto must be out of use because of:

        ”a) breakdown;
      “b) repair;
      “c) servicing; or
      “d) loss.
      “2. A four-wheel motor vehicle newly acquired by you. It applies only:
      “a) during the first 30 days you own the vehicle unless it replaces your auto; and
      “b) If you do not have other insurance. You must pay any premiums resulting from this coverage.
      “3. A motor vehicle owned by a non-member of your household and not covered in item 1. of this section.
      “a) This applies only to policies issued to individual persons (not organizations) and while the vehicle is being used by you or a relative. It protects the user, and any person or organization, except as noted below in b), who does not own the vehicle but is legally responsible for its use.
      “b) This does not apply to losses involving a motor vehicle:
      “(1) used in the business or occupation of you or a relative except a private passenger auto used by you, your chauffeur, or your household employee;
      “(2) owned, rented or leased by an employer of an insured;
      “(3) rented or leased by anyone for or on behalf of an employer of an insured; or
      “(4) furnished to you or a relative for regular use. Furnished for regular use does not include a motor vehicle rented from a rental company for less than 28 days.”

       The other coverages are “physical damage,” “family compensation,” and “uninsured and underinsured motorists.”

       The listing of exceptions in part 3 (b) rather than in a separate part four imply that they are intended to apply to the coverage as extended in part 3(a).

       Furthermore, it is not clear that the punctuation used in part 3 (a) is suggestive of the meaning submitted by the plaintiff. See, e.g., Sanzone v. Board of Police Commissioners, 219 Conn. 179, 190, 592 A.2d 912 (1991) (“where a qualifying phrase is separated from several phrases preceding it by means of a comma, one may infer that the qualifying phrase is intended to apply to all its antecedents, not only the one immediately preceding it”).