author: SCHALLER, J.

text:
    RICHARD PRESTON v. STATE OF CONNECTICUT, DIVISION OF CRIMINAL JUSTICE
    (AC 19395)
    Schaller, Zarella and Pellegrino, .Js.
    Argued May 31
    officially released November 28, 2000

      Stephen J. Courtney, for the appellant (plaintiff).

      Saranne P. Murray, with whom, on the brief, was Jennifer Bullock Majewski, for the appellant (defendant).
   Opinion

SCHALLER, J.

The plaintiff, Richard Preston, appeals from the judgment of the trial court rendered in favor of the defendant, the division of criminal justice, denying the plaintiffs application to vacate an arbitration award. On appeal, the plaintiff claims that the court improperly (1) denied his application because the award was untimely issued and (2) failed to rule on his alternative grounds for vacating the award. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. The plaintiff formerly was employed by the defendant as a prosecutor and was a member of the prosecutor’s bargaining unit, Connecticut Prosecutors, Local 1437, Council 4, AFS-CME (union). The union and the defendant were parties to a collective bargaining agreement (agreement) covering the period from July 1, 1994, to June 30, 1997.

On May 9,1995, the defendant terminated the plaintiff from employment as a result of his “conduct, including alleged stalking and harassing of . . . two women.” In accordance with the agreement, the union filed a grievance on behalf of the plaintiff regarding his discharge from employment with the defendant. In accordance with the agreement, the union and the defendant submitted the grievance to arbitration with an unrestricted submission as follows: “Did the [defendant] have just cause to discharge [the plaintiff]? If not, what shall be the remedy, consistent with the contract and the parties’ agreement concerning the tolling of liability in this matter?”

Subsequently, hearings were held before arbitrator Louis Pittocco (arbitrator). At the first arbitration hearing on October 30, 1996, the plaintiff signed a waiver of union representation and proceeded pro se. At the November 5, 1996 hearing, an issue arose with respect to the admissibility of evidence. The parties agreed to present briefs to the arbitrator regarding that issue postmarked December 10, 1996, which deadline subsequently was extended to January 3, 1997. After briefs were presented, the arbitrator issued a ruling allowing the admission of the disputed evidence on January 14, 1997. At the last hearing on May 1, 1997, the parties agreed to submit posthearing briefs to the arbitrator postmarked May 30, 1997, which date was later extended by mutual agreement to June 6, 1997.

In a letter dated July 2,1997, the arbitrator gave notice that he was unable to complete the arbitration award by July 6, 1997, and indicated that he would be postmarking the award by July 11, 1997.

At the evidentiary hearing held later before the court, the arbitrator testified that he did not receive any objections from the parties with respect to his July 2, 1997 letter. The arbitrator also testified that in light of his experience, he assumed that in the absence of an objection, his request for the extension had been granted.

On July 7, 1997, attorney Anne H. Littlefield, counsel for the defendant, contacted the plaintiff concerning the July 2, 1997 letter. The plaintiff was noncommittal and stated that he needed more time to do “research” before he responded to Littlefield’s suggestion of a joint agreement for an extension of time. The plaintiff testified that when he called Littlefield’s office later in the day, he left a message with a secretary that he was unable to enter into a joint agreement. Littlefield testified that the only message she received was that the plaintiff would respond separately to the arbitrator.

In a letter dated July 7, 1997, attorney Saranne P. Murray, also counsel for the defendant, responded to the arbitrator’s July 7, 1997 letter. In her letter, Murray informed the arbitrator that the defendant consented to an extension of the deadline for filing the award until July 11, 1997. Moreover, Murray advised the arbitrator that the union’s agent, Joel Schweidel, had indicated in a telephone conversation that although he was not sure if the union had standing due to the plaintiffs pro se status, the union had no objection to the deadline.

Subsequent to receiving Murray’s July 7, 1997 letter, the plaintiff did not call or write the arbitrator. Instead, the plaintiff spoke to Schweidel and specifically instructed him to write a letter to the arbitrator. Although Schweidel wrote a letter dated July 11, 1997, that letter failed to state the plaintiffs alleged position that he already considered the award to be void. Instead, the letter merely informed the arbitrator that “the union cannot take a position on the extension of the deadline for filing your decision.”

On July 10, 1997, the arbitrator issued his award with a cover letter dated July 11, 1997. The arbitrator found that the defendant had just cause to discharge the plaintiff and therefore denied the grievance. The arbitrator’s decision stated in relevant part: “With regard to the allegations of illegal and unethical conduct through harassment and stalking . . . the arbitrator finds that these actions on [the plaintiffs] part were deplorable and unacceptable for a prosecutor. . . . [T]here was sufficient proof to sustain his discharge.”

On August 5, 1997, pursuant to General Statutes § 52-418, the plaintiff filed an application to vacate the award. The plaintiff also filed a motion to present additional evidence seeking to introduce numerous facts and exhibits regarding his application to vacate the award. The evidence that the plaintiff sought to admit included material concerning the arbitrator’s admission of evidence at the arbitration hearing that had been suppressed in connection with the plaintiffs criminal prosecution, as well as the arbitrator’s decision to exclude other evidence proffered by the plaintiff. The court, Devlin, J., granted the plaintiffs motion in part and denied it in part, stating that “[t]he parties shall be permitted to offer evidence on the question of whether the arbitrator’s decision was untimely issued. The motion is otherwise denied.”

On October 20, 1998, an evidentiary hearing limited to the issue of timeliness was held. On February 19, 1999, the court, Hon. Mary R. Hennessey, judge trial referee, issued its decision denying the plaintiffs application to vacate the award. The court found that the union remained a party to the arbitration process and, therefore, “under the agreement it had the authority to grant the extension of time requested by the arbitrator.” The court found that because the defendant and the union had agreed to the extension of time, the award was timely. The court further found that even if the award was untimely, the plaintiff had waived any objection to its untimeliness through his actions. The plaintiff thereafter filed this appeal.

I

The plaintiff first claims that the court improperly determined that the arbitration award was timely issued. We disagree.

A

“[ W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

In deciding the plaintiffs application to vacate the arbitration award, the court made the following additional findings of fact. The court found that although the plaintiff declared his intention to proceed pro se in the arbitration, the union remained a party in the matter before the arbitrator. The court recognized that the agreement at issue here was between the “State of Connecticut, acting by and through the Connecticut Division of Criminal Justice . . . and Connecticut Prosecutors, Local 1437, AFSCME Council 4 ... .” Although the plaintiff waived union representation so he could argue pro se, this action did not remove the union from being a party to the arbitration. In its memorandum of decision, the court concluded, therefore, that “under the agreement [the union] had the authority to grant the extension of time requested by the arbitrator. The arbitrator cannot be put in the position of having to determine whether under the agreement the union can or cannot give consent to the request for an extension of time when the [plaintiff] elects to represent himself in the proceedings. The arbitrator has the right to rely on the language of the agreement, which specifies ‘parties’ as being the ones who must jointly agree to an extension of time. In this case, there was joint agreement between the [defendant] and the union for the extension of time until July 11, 1997. The award issued on July 11, 1997, [was] within the extension of time agreed to and was therefore timely.” (Emphasis added.)

On the whole record, the conclusions challenged here are legally and logically correct, and the facts set out in the court’s memorandum of decision find ample support in the evidence. We therefore cannot conclude that the court’s factual findings or conclusions are clearly erroneous.

B

Although the facts set out in the court’s memorandum of decision find ample support in the evidence, we must still analyze whether the arbitration award violated § 52-418 (a) (4). In addition to the limitations on this court’s review of the trial court’s factual findings, our “[j judicial review of arbitral decisions is narrowly confined. When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties’ agreement. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 185, 530 A.2d 171 (1987). When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission. Hartford v. Board of Mediation & Arbitration, 211 Conn. 7, 14, 557 A.2d 1236 (1989); New Haven v. AFSCME, Council 15, Local 530, 208 Conn. 411, 415-16, 544 A.2d 186 (1988). Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution. Middletown v. Police Local, No. 1361, 187 Conn. 228, 230, 445 A.2d 322 (1982); State v. Connecticut Employees Union Independent, 184 Conn. 578, 579, 440 A.2d 229 (1981). Garrity v. McCaskey, 223 Conn. 1, 4-5, 612 A.2d 742 (1992). Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that the construction placed upon the facts or the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators’ decision of the legal questions involved. Caldor, Inc. v. Thornton, 191 Conn. 336, 340-41, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985).

“One of the principal reasons for this deference is that the scope of our review is expressly limited by § 52-418; Metropolitan District Commission v. AFSCME, Council 4, Local 184, 237 Conn. 114, 118, 676 A.2d 825 (1996); and, sometimes, by the terms of the parties’ agreement. Garrity v. McCaskey, supra, 223 Conn. 5 ([t]he authority of an arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review). We have stated on numerous occasions that arbitration is a creature of contract [whereby the parties themselves, by agreement, define the powers of the arbitrators]. See, e.g., American Universal Ins. Co. v. DelGreco, supra, 205 Conn. 185; O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, 203 Conn. 133, 145, 523 A.2d 1271 (1987); Board of Education v. AFSCME, Council 4, Local 287, 195 Conn. 266, 269, 487 A.2d 553 (1985). Therefore, it is the arbitrator’s judgment that was bargained for and contracted for by the parties, and we do not substitute our own judgment merely because our interpretation of the agreement or contract at issue might differ from that of the arbitrator.

“These well established principles governing consensual arbitration are subject to certain exceptions. Even in the case of an unrestricted submission, we have, however, recognized three grounds for vacating an award: (1) the award rules on the constitutionality of a statute; Caldor, Inc. v. Thornton, [supra, 191 Conn. 344]; (2) the award violates clear public policy; Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 339, 555 A.2d 406 (1989); or (3) the award contravenes one or more of the statutory proscriptions of § 52-418. Carroll v. Aetna Casualty & Surety Co., [189 Conn. 16, 22-23, 453 A.2d 1158 (1983)]. Garrity v. McCaskey, supra, 223 Conn. 6.” (Internal quotation marks omitted.) Stratford v. International Assn. of Firefighters, AFL-CIO, Local 998, 248 Conn. 108, 114-16, 728 A.2d 1063 (1999).

“[A]n award that manifests an egregious or patently irrational application of the law is an award that should be set aside pursuant to § 52-418 (a) (4) because the arbitrator has exceeded [his] powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made. We emphasize, however, that the manifest disregard of the law ground for vacating an arbitration award is narrow and should be reserved for circumstances of an arbitrator’s extraordinary lack of fidelity to established legal principles.

“So delimited, the principle of vacating an award because of a manifest disregard of the law is an important safeguard of the integrity of alternate dispute resolution mechanisms. Judicial approval of arbitration decisions that so egregiously depart from established law that they border on the irrational would undermine society’s confidence in the legitimacy of the arbitration process. . . . Furthermore, although the discretion conferred on the arbitrator by the contracting parties is exceedingly broad, modem contract principles of good faith and fair dealing recognize that even contractual discretion must be exercised for purposes reasonably within the contemplation of the contracting parties. . . .

“In Garrity, we adopted the test enunciated by the United States Court of Appeals for the Second Circuit in interpreting the federal equivalent of § 52-418 (a) (4). . . . The test consists of the following three elements, all of which must be satisfied in order for a court to vacate an arbitration award on the ground that the arbitration panel manifestly disregarded the law: (1) the error was obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator; (2) the arbitration panel appreciated the existence of a clearly governing legal principle but decided to ignore it; and (3) the governing law alleged to have been ignored by the arbitration panel is well defined, explicit, and clearly applicable.” (Citations omitted; internal quotation marks omitted.) Saturn Construction Co. v. Premier Roofing Co., 238 Conn. 293, 304-305, 680 A.2d 1274 (1996).

The crux of the plaintiffs claim is that the arbitrator exceeded his authority within the meaning of § 52-418 (a) (4) because the award was issued in an untimely manner under the terms of the collective bargaining agreement. Moreover, the plaintiff contends that he expressly waived union representation and, therefore, the union was not a party to the arbitration. Thus, the plaintiff argues that the union had no right to grant permission to extend the time limit for the issuance of the award.

Because we have already determined that the award was timely since the proper parties consented to the time extension, the plaintiff has no further basis to challenge the award due to the unrestricted nature of the agreement. We conclude, therefore, that § 52-418 was not violated by the arbitrator’s decision. The terms of the award are clear, and the award conforms to the issues submitted. Accordingly, we affirm the judgment of the trial court in denying the application to vacate the award.

II

The plaintiff next claims that the court improperly failed to rule on his alternative grounds for vacating the arbitration award. We disagree.

After the court denied the plaintiffs application to vacate the award, the plaintiff filed a motion for articulation concerning that decision. Although the court previously had ruled that the case would proceed only with regard to the issue of timeliness, the plaintiff asked the court to “articulate its consideration and decision thereof’ with respect to the grounds he had proffered for vacating the award other than timeliness. The court denied that request, ruling that “the only issue before this court was the issue of timeliness, which this court addressed fully in its decision.” The plaintiff failed to perfect the record by filing a motion for review with this court pursuant to Practice Book § 66-7.

Our rules provide a procedure for clarifying the record when rulings of the trial court are unclear. Practice Book § 66-7; Buchetto v. Haggquist, 17 Conn. App. 544, 548, 554 A.2d 763, cert. denied, 211 Conn. 808, 559 A.2d 1141 (1989). Our rules provide a procedure for reviewing the adequacy of the trial court’s response to a motion for articulation. Practice Book § 66-7. “When a party is dissatisfied with the trial court’s response to a motion for articulation, he [or she] may, and indeed under appropriate circumstances he [or she] must, seek immediate appeal ... to this court via a motion for review.” (Internal quotation marks omitted.) State v. One 1993 Black Kenworth Truck, 41 Conn. App. 779, 789, 679 A.2d 13 (1996), quoting Buchetto v. Haggquist, supra, 549.

“Even if we assume the validity of this claim, proper utilization of the motion for articulation [and the motion for review] serves to dispel any such ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal. Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1983). The burden of securing an adequate record for appellate review of an issue presented on a cross appeal rests with the cross appellant. Niles v. Niles, 9 Conn. App. 240, 249, 518 A.2d 932 (1986). Anderson v. Schieffer, 35 Conn. App. 31, 45, 645 A.2d 549 (1994). Because it is the [cross] appellant’s responsibility to provide this court with an adequate record for review . . . we will not remand a case to correct a deficiency the [cross] appellant should have remedied. . . . State v. One 1993 Black Kenworth Truck, supra, 41 Conn. App. 789; Buchetto v. Haggquist, supra, 17 Conn. App. 549; Barnes v. Barnes, supra, 494.” (Internal quotation marks omitted.) Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn. App. 152, 180, 714 A.2d 21, cert. denied, 247 Conn. 905, 720 A.2d 516 (1998). We therefore decline to review this issue.

The judgment is affirmed.

In this opinion the other judges concurred.

       The hearings were held in Rocky Hill on October 30 and November 5, 1996, and January 23, March 31, April 2 and May 1, 1997.

       Article nine, § 9 (d), of llie agreement, regarding grievance procedure, provides in relevant part: “The arbitrator shall have no power to add to, subtract from, alter, or modify this Agreement .... The arbitrator shall render his/her decision in writing no later than thirty (30) calendar days after the conclusion of the hearing unless parties jointly agree otherwise.
      “The arbitrator’s decision shall be final and binding on the parties in accordance with the . . . General Statutes § 52-418 provided, however, neither the submission of questions of arbitrability to any arbitrator in the first instance nor any voluntary submission shall be deemed to diminish the scope of judicial review over arbitral awards, including awards on competent jurisdiction to construe any such award as contravening the public interests.
      “Late Arbitration Awards. On those cases in which an arbitrator fails without permission of the parties to render a decision within the contractual time limits:
      “a. the award shall be void;
      “b. the arbitrator shall be dropped from the panel;
      “c. the arbitrator shall not be paid.”

       The plaintiff testified that he received the arbitrator’s July 2, 1997 letter on July 5, 1997. He further testified that he did not contact the arbitrator at that time or at any other time.

       General Statutes § 52-418 (a) provides: “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating tire award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       The plaintiff also filed a motion for articulation of the court’s decision denying his application. The plaintiff asked the court to “articulate its consideration and decision thereof’ with respect to the grounds he proffered for vacating the award other than timeliness. The court denied the motion, ruling that “the only issue before this court was the issue of timeliness, which this court addressed fully in its decision.”

       On appeal, the plaintiff proffers the foEowing alternative grounds as bases for reversing the judgment of the trial court: (1) the arbitrator exceeded his authority, contrary to pubEc poEcy, in finding that the plaintiff was guEty of a criminal offense, (2) the arbitrator’s decision to admit suppressed evidence unfairly prejudiced the plaintiff and violated pubEc poEcy as reflected in General Statutes § 54-33f and (3) the arbitrator refused to hear evidence pertinent and material to the controversy resulting in prejudice to the plaintiff in contravention to § 52-418 (a) (3).


source: Caselaw Access Project

author: PELLEGRINO, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. CHARLES JONES STATE OF CONNECTICUT v. JASPER DUDLEY
    (AC 18786)
    (AC 19057)
    Landau, Mihalalcos and Pellegrino, Js.
    Argued May 3
    officially released November 28, 2000

      Cameron Dorman, special public defender, for the appellants (defendants).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the briefs, were Jonathan C. Benedict, state’s attorney, and Joseph T. Corradino, assistant state’s attorney, for the appellee (state).
   Opinion

PELLEGRINO, J.

The defendants, Jasper Dudley and Charles Jones, each appeal from judgments of conviction, rendered following a joint jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and conspiracy to commit robbery in the first degree in violation of General Statutes § 53a~48. Both defendants claim that (1) the trial court improperly restricted their cross-examination of a prosecution witness, (2) the court improperly failed to conduct an adequate inquiry into allegations of juror misconduct and improperly ruled that there was no juiy misconduct (3) the state improperly failed to disclose the arrest record of a prosecution witness and (4) the court improperly admitted statements of coconspirators. We affirm the judgments of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On December 23, 1996, at approximately 1 p.m., the defendants, along with two other individuals, Michael Capozziello and Darius Miller, participated in the armed robbery of a Bridgeport automotive store. Capozziello subsequently confessed to the crime, implicated the defendants and testified against them at trial. Additional facts will be discussed where relevant to the issues on appeal.

I

The defendants claim first that the court improperly restricted their cross-examination of Capozziello, a key prosecution witness. They claim that the restrictions violated their rights to confront the witnesses against them under article first, § 8, of the constitution of Connecticut, and the sixth and fourteenth amendments to the United States constitution. In addition, they claim that the court abused its discretion in imposing those restrictions.

The following additional facts are relevant to these claims. Prior to the robbery at issue, Capozziello and members of his family were acquainted with Miller. At some point prior to the robbery, Miller was arrested in connection with the alleged sexual assault of one of Capozziello’s cousins, and Miller also had disagreements with members of the Capozziello family.

Following Capozziello’s direct testimony, the defendants sought to question Capozziello regarding the influence and possible involvement of his mother in implicating the defendants in the robbery. The defendants argued that the questioning was relevant as to the witness’ credibility and to establish bias. The court, however, sustained the state’s objections to that line of inquiry.

“The general rule is that restrictions on the scope of cross-examination are within the sound discretion of the trial court . . . but this discretion comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment.” (Citations omitted.) State v. Gaynor, 182 Conn. 501, 508, 438 A.2d 749 (1980); see also State v. Thompson, 191 Conn. 146, 148, 463 A.2d 611 (1983).

“The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. ... In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” (Citations omitted; internal quotation marks omitted.) State v. Santiago, 224 Conn. 325, 331, 618 A.2d 32 (1992); see also Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Lubesky, 195 Conn. 475, 481-82, 488 A.2d 1239 (1985). “In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial. . . . [T]he denial of all meaningful cross-examination into a legitimate area of inquiry fails to comport with constitutional standards under the confrontation clause.” (Citation omitted; internal quotation marks omitted) State v. Santiago, supra, 331; see also State v. Roma, 199 Conn. 110, 116, 505 A.2d 717 (1986).

Once it has been established that constitutional standards have been met, the “trial court has broad discretion in ruling on the admissibility of evidence. The determination of the relevancy and remoteness of evidence is within the sound discretion of the trial court. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . Sound discretion . . . means a discretion that is not exercised arbitrarily or wilfully .... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter .... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling. ... In considering the relevancy of evidence, we ask whether it tends to establish the existence of a material fact or to corroborate other direct evidence in a case. ... If the evidentiary ruling is not of constitutional dimension, an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.” (Citations omitted; internal quotation marks omitted.) McNeff v. Vinco, Inc., 59 Conn. App. 698, 701-702, 757 A.2d 685 (2000). Although “[c]ross-exami-nation to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted . . . [t]he confrontation clause does not . . . suspend the rules of evidence . . . .” (Citations omitted; internal quotation marks omitted.) State v. Reeves, 57 Conn. App. 337, 344, 748 A.2d 357 (2000).

With these standards in mind, we conclude that the defendants’ cross-examination of Capozziello satisfied constitutional requirements and, further, that the court did not abuse its discretion in limiting the questioning as it did. A review of the record discloses that the defendants had a more than ample opportunity to cross-examine Capozziello regarding his bias against Miller and motives in testifying. In response to the defendants’ questioning, Capozziello spoke of the incidents leading to a strained relationship between his family and Miller, of his mother’s role in the robbery investigation, and of his personal dislike for Miller and the other two defendants. The jury was also aware that he had received a favorable plea agreement in exchange for his testimony against the defendants. Overall, it cannot be said that the jury had inadequate information with which to judge Capozziello’s credibility as a witness. It also is not the case that there was no meaningful opportunity to inquire into Capozziello’s potential bias. Although “the constitutional right of cross-examination guarantees the opportunity for effective cross-examination . . . that does not mean cross-examination ‘that is effective in whatever way, and to whatever extent, the defense might wish.’ Delaware v. Fensterer, [474 U.S. 15, 20, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985)]. That right does not include, in a word, ‘unrestricted’ cross-examination.” State v. Reeves, supra, 57 Conn. App. 353. The court limited the defendants’ questioning about Capozziello’s mother primarily on the ground of relevancy. On the basis of our review of the record and briels, we cannot say that the court abused its discretion in ruling as it did.

II

Each defendant also claims that the court improperly failed to conduct an adequate inquiry into allegations of juror misconduct and improperly ruled that there was no juror misconduct. The defendants claim that there was evidence of juror misconduct that the court did not find and properly address, and that provided grounds for granting their motions for a new trial. We do not agree.

The following additional facts and procedural history are relevant to our resolution of this claim. After the conclusion of the trial, and after the verdict was accepted by the court, the court clerk met with the jurors to distribute to them the customary juror questionnaires. At that time, one of the jurors mentioned something to the clerk that gave her cause to believe that the juror may have had information about Jones’ criminal history that was not part of the evidence in the present case. The clerk reported this to the court, which promptly questioned the juror regarding the statements made to the clerk. The court’s inquiry centered on whether the juror had information that Jones had been involved in a robbery of a Subway Sandwich Shop. After the court conducted the inquiry, it determined that the juror had no such information and that there was no impropriety. The court, therefore, denied the defendants’ motions for new trials.

“Jury impartiality is a core requirement of the right to trial by jury guaranteed by the constitution of Connecticut, article first, § 8, and by the sixth amendment to the United States constitution. . . . [An] accused [is entitled to] a fair trial by a panel of impartial, indifferent jurors. . . . The modem jury . . . determines the case solely on the basis of the evidence and arguments .... [These] rules . . . assure that the jury will decide the case free from external influences ....

“The question is whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial. . . . Where, however, the trial court was in no way responsible for the juror misconduct . . . [the] defendant . . . bears the burden of proving that actual prejudice resulted from that misconduct.” (Internal quotation marks omitted.) State v. Portee, 55 Conn. App. 544, 565-66, 740 A.2d 868 (1999), cert. denied, 252 Conn. 920, 744 A.2d 439 (2000).

“Our review of the scope of the trial court’s preliminary inquiry into allegations of jury misconduct is [settled] .... [A] trial court must conduct a preliminary inquiry, on the record, whenever it is presented with any allegations of jury misconduct in a criminal case .... [T]he trial court has broad discretion to determine the form and scope of the proper response to allegations of jury misconduct .... Our role as an appellate court is limited to a consideration of whether the trial court’s review of alleged jury misconduct can fairly be characterized as an abuse of its discretion.

“[ T]he trial court should consider the following factors in exercising its discretion as to the form and scope of a preliminary inquiry into allegations of jury misconduct: (1) the criminal defendant’s substantial interest in his constitutional right to a trial before an impartial jury; (2) the risk of deprivation of the defendant’s constitutional right to a trial before an impartial jury . . .and (3) the state’s interests of, inter alia, juiy impartiality, protecting jurors’ privacy and maintaining public confidence in the jury system.” State v. Santiago, 245 Conn. 301, 331, 715 A.2d 1 (1998).

“[ A]ppellate review of atrial court’s decision granting or denying a motion for a new trial must take into account the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided. . . . [W]e have accordingly confined our role to a determination of whether there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Portee, supra, 55 Conn. App. 566.

The defendants had the burden of proving misconduct and the burden of establishing the prejudicial impact of that misconduct. See State v. Rhodes, 248 Conn. 39, 47, 726 A.2d 513 (1999). The defendants failed to satisfy that burden. The court conducted an adequate inquiry into potential juror misconduct, and the court found the juror’s testimony to be credible. See State v. Brown, 235 Conn. 502, 527-28, 668 A.2d 1288 (1995) (“the trial judge ... is in a superior position to evaluate the credibility of allegations of jury misconduct, whatever their source”). On the basis of that evidence, the court concluded that the court clerk had misinterpreted a statement made by one of the jurors and that there was no juror misconduct. Because we have concluded that the court properly conducted an inquiry into whether there was juror misconduct and concluded that there was no such misconduct, there is no need to discuss prejudice.

Ill

Both defendants claim next that the state improperly failed to disclose exculpatoiy material prior to trial. They argue that they are entitled to new trials because the state withheld information concerning Capozziello’s arrest record in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), thereby depriving them of a fair trial. We disagree.

The following additional facts are relevant to our resolution of this claim. Following the trial of the defendants and during the sentencing of Capozziello, the defendants learned that Capozziello had been arrested the day after the robbery at issue and charged with larceny in conjunction with an unrelated incident. The state claims that it was unaware of the arrest until the day of Capozziello’s sentencing.

The defendants were entitled to the disclosure of exculpatory evidence under the United States constitution and the Connecticut constitution. See id., 86; State v. Simms, 201 Conn. 395, 405 & n.8, 518 A.2d 35 (1986). To prevail on their claim, however, they must establish that the state suppressed the evidence after a request by the defendants, that the evidence was favorable to the defendants and that the evidence was material. State v. Correa, 241 Conn. 322, 360-61, 696 A.2d 944 (1997).

“[ N]ondisclosed exculpatory evidence will be considered material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different,. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Internal quotation marks omitted.) State v. Ortiz, 252 Conn. 533, 545, 747 A.2d 487 (2000). “The determination of materiality has been said to be inevitably fact-bound and like other factual issues is committed to the trial court in the first instance.” (internal quotation marks omitted.) State v. Correa, supra, 241 Conn. 361. Moreover, “the mere possibility that an item of undisclosed evidence might have helped the defense or might have affected the outcome of the trial, however, does not establish materiality in the constitutional sense.” (Internal quotation marks omitted.) State v. Ortiz, supra, 546.

The defendants argue that the evidence regarding the arrest would have been used to impeach Capozziello’s credibility, and claim that it would have established bias, interest and his propensity for untruthfulness. That evidence, however, would have been cumulative as to bias and interest, since the jury was aware that in exchange for his testimony, Capozziello was charged only with conspiracy to commit robbery in the third degree with a recommendation for a three year sentence for participating in the robbery of the automotive store. Further, the defendants did not proffer evidence as to how the conduct precipitating the larceny charge would establish Capozziello’s character for untruthfulness. Evidence of a specific act that is probative of Capoz-ziello’s character for untruthfulness would be allowed at the discretion of the court, and would be admissible only if the specific act is probative of his character for untruthfulness, not merely general bad character. State v. Demers, 209 Conn. 143, 156-57, 547 A.2d 28 (1988); see Conn. Code Evid. § 6-6 (b), commentary. In the absence of a proffer, therefore, that the larceny charge affected Capozziello’s veracity and because the evidence would have been cumulative in other respects, we cannot say that the disclosure of Capozziello’s arrest prior to the defendants’ trial was material and would have affected the outcome of the trial. Accordingly, the defendants cannot prevail on this claim.

IV

Both defendants claim finally that the court improperly admitted statements of the coconspirators, including the defendants. They argue that the state failed to establish, through independent evidence, that a conspiracy existed and that the defendants participated in the conspiracy prior to the court’s allowing Capozziello to testify that Miller or Dudley told him that Jones would rob anything, and that Jones had discussed the possibility of robbing an Army-Navy store the same day as the robbery at issue here. We disagree.

Statements made by coconspirators are properly admitted as an exception to the hearsay rule. State v. Couture, 218 Conn. 309, 322, 589 A.2d 343 (1989); see Conn. Code Evid. § 8-3 (1) (D). Before statements of a coconspirator may be admitted, however, “the trial judge must make a preliminary determination that there is sufficient independent evidence to establish the following: (1) that a conspiracy existed ... (2) that the conspiracy was still in existence at the time the statement was made ... (3) that the declarations were made in furtherance of the conspiracy . . . and (4) that both the declarant and the defendant participated in the conspiracy .... The court must make its preliminary determination by a fair preponderance of the evidence independent of the hearsay utterances .... Once the threshold requirement for admissibility is satisfied by a showing of a likelihood of an illicit association between the declarant and the defendant . . . the conspirators’ statements are admissible . . . .” (Citations omitted; internal quotation marks omitted.) State v. Vessichio, 197 Conn. 644, 654-55, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986).

To establish the crime of conspiracy under § 53a-48, “the state must show that there was an agreement between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. . . . The existence of a formal agreement between the parties need not be proved; it is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act. . . . A conviction of the crime of conspiracy can be based on circumstantial evidence, for conspiracies, by their very nature, are formed in secret and only rarely can be proved otherwise than by circumstantial evidence. . . . The evidence will be construed in a way most favorable to sustaining the preliminary determinations of the trial court; its conclusions will not be disturbed on appeal unless found to be clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Id., 656.

Before the court admitted the coconspirator statements, it had before it evidence that the defendants were in the same car as Miller and Capozziello, and that all four went to the auto parts store, and that Miller went into the store first, then returned to the car, at which point Capozziello and Jones entered the store. The court also heard evidence from two store employees that Jones had been in the store and was the individual who committed the robbery. Accordingly, independent of the hearsay statements, there was sufficient evidence to prove that a conspiracy existed.

On the basis of our review of the record, we conclude that the court had sufficient evidence before it to conclude, by a preponderance of the evidence, that Capoz-ziello and the defendants were involved in a conspiracy to commit robbery. The court, therefore, properly admitted Capozziello’s statements.

The judgments are affirmed.

In this opinion the other judges concurred.

       We address the defendants’ appeals in one opinion because both defendants presented identical issues, submitted identical briefs and stipulated at oral argument that the arguments as to Jones would apply also to Dudley.

       Article first, § 8, of the constitution of Connecticut provides in relevant part: “In all criminal prosecutions, the accused shall have a right to . . . be confronted by the witnesses against him . . . .”

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him . . . .”

       The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”

       Although the defendants did not explicitly argue at trial that the restrictions on cross-examination violated their rights under either the state or federal confrontation clauses, they nevertheless effectively preserved their constitutional claims by challenging the court’s rulings on the ground of bias and by taking the proper exceptions. See State v. Santiago, 224 Conn. 325, 330-31 n.6, 618 A.2d 32 (1992). Because they have not argued that then-state constitutional rights are distinct from their federal constitutional rights, for purposes of this analysis we treat those rights as coextensive. See State v. Provost, 251 Conn. 252, 256 n.4, 741 A.2d 295 (1999).

       The defendants argue in their briefs that Capozziello’s mother “was involved in” the case against Miller relative to the sexual assault of Capozziello’s cousin, citing to a portion of the transcript to support that contention. After reviewing the relevant language, we conclude that the cited portion of the transcript does not support their contention.

       The court questioned the juror in relevant part as follows:
      “[The Court]: . . . [I]t came to my attention through my clerk . . . that you expressed something in the . . . nature of knowledge as to some of the background of [Jones] . . . other than what came out in evidence. . . . [TJhere was a mention by you of the word Subway. . . .
      “[Juror]: No.
      “[The Court]: Subway Sandwich Shop?
      “[Juror]: Well, I had lunch there. . . .
      “[The Court]: [Were you] aware that [Jones] at one time was charged with attempting to rob or maybe did rob a Subway Sandwich Shop . . .
      “[Juror]: No.
      “[The Court]:—[AJnything of that nature?
      “[Juror]: No.
      “[The Court]:—[A]t the time of the deliberations, did you discuss with any other juror anything in the nature of what [Jones] might have done other than what [was in] . . . evidence ....
      “[Juror]: No, we didn’t. All we discussed was the evidence ....
      “[The Court]: . . . [S]o . . . there was no mention of . . . [Jones] having had some other relationship to a criminal act in another location other than the [auto parts store].
      “[Juror]: No. All we discussed was what was going on in the trial. . . .
      “[The Court]: [So] you had no knowledge or even a suggestion in your mind that he had done something else recently in the way of a criminal act?
      “[Juror]: No. No.
      “[The Court]: Okay. All right.”
      The court then excused the juror and in relevant part informed counsel as follows:
      “The Court: ... If the [juror] says no, I cannot go beyond his statement in a collateral attack ....
      “[Assistant State’s Attorney]: I think Your Honor has covered it . . . and I think that the court is able to find on [on the basis of the juror’s answers] that there was no outside contamination of the jury ....
      “The Court: . . . [I]t does seem that the juror has indicated quite emphatically that nothing in the nature of collateral knowledge entered into this particular verdict.
      “[Counsel for Miller]: I tend to agree with that .... I thought that your inquiry was sufficient. . . .
      “[Counsel for Jones]: I’d ask the court to further inquire whether he had knowledge that [Jones] was incarcerated during the course of the trial.
      “The Court: [I]f you want me to ask that question I certainly will. . . .

        "[Counsel for Dudley]: Nothing, Your Honor.”
      The juror then reentered the courtroom, and the following colloquy ensued:
      “The Court: ... I want you to understand that whatever your answers were, whether they were negative or positive, in no way would reflect on your . . . being in trouble. . . .
      “The Court,: . . . So . . . your answers are the same, understanding that.
      “[Juror]: ... Yes, sir.
      “The Court,: . . . [W]ere you aware at, any time that [Jones] was incarcerated while on trial?
      “[Juror]: No, but we had an idea.....
      “The Court: . . . And did that seem to—
      “[Juror]: No, it didn’t.
      “The Court,:—[affect] the deliberations of yourself?
      “[Juror]: No, no.”
      The court then excused the juror, and the following colloquy in part, ensued between the court and counsel:
      “[Counsel for Jones]: ... I just ask the court to inquire further as to whether [the juror] was aware that [another] juror had been arrested pursuant to not showing up [for trial] and whether that was a concern of his when he came in [to court] and whether it impacted upon his . . . willingness to tell us the whole truth here. . . .
      “[Counsel for Dudley]: ... I was thinking the same thing.”
      The juror then reentered the courtroom, and the following colloquy took place:
      “The Court: . . . Are you aware of anything . . . that related to . . . your being chosen as a regular juror?
      “[Juror]: Yes ....
      “The Court: Did that in any way affect . . . your . . . being candid or truthful ....
      “[Juror]: . . . [T]hat didn’t even enter my mind ....
      “The Court: . . . And do you still indicate to the court that you were not aware in any way of [Jones] . . . concerning a robbery at a Subway Sandwich Shop ....
      “[Juror]: No. . . .
      “The Court: And that was not discussed among the other jurors at the time [of deliberations]—
      “[Juror]: It was not, no.”
      The court then excused the juror and explained to counsel that the court had no reason to believe that the testimony of the juror was anything but the truth. Thereafter, the court allowed counsel for Jones to question the court clerk under oath regarding what she believed the juror had said to her. The clerk testified that the juror had approached her following the deliberations and questioned her as to which Subway Sandwich Shop Jones had robbed. The court then stated that on the basis of the testimony of the clerk and the juror, the juror did not have knowledge that Jones had been involved in a prior robbery of a Subway Sandwich Shop. Counsel for the defendants excepted to that ruling.

       The evidence also could have been used to establish bias and interest, but because it would be merely cumulative, it would not be material.


author: Per Curiam.

text:
    STATE OF CONNECTICUT v. FRANKLIN MOORE
    (AC 19741)
    Foti, Zarella and Dupont, Js.
    Argued September 12
    officially released October 24, 2000
   Per Curiam.

The judgment is affirmed.


text:
    NEW MILFORD SAVINGS BANK v. JOHN D. MULVILLE, JR., ET AL.
    (AC 19964)
    (AC 19966)
    Spear, Zarella and Hennessy, Js.
    Submitted on briefs September 15
    officially released October 24, 2000
   Per Curiam.

The judgment is affirmed.


text:
    SCOTT DAWKINS v. COMMISSIONER OF CORRECTION
    (AC 20179)
    Landau, Spear and Hennessy, Js.
    Submitted on briefs September 15
    officially released October 24, 2000
   Per Curiam.

The judgment is affirmed.


text:
    TIMOTHY WALLS ET AL. v. OP&F SCHRODER TRUST ET AL.
    (AC 19599)
    Landau, Spear and Hennessy, Js.
    Submitted on briefs September 15
    officially released October 24, 2000
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JOHN HILLSON
    (AC 19405)
    Landau, Spear and Daly, Js.
    Submitted on briefs September 15
    officially released October 24, 2000
   Per Curiam.

The judgment is affirmed.


text:
    PALMA GUARDIANI v. JOHN GUARDIANI, JR.
    (AC 20038)
    Landau, Spear and Daly, Js.
    Submitted on briefs September 15
    officially released October 24, 2000
   Per Curiam.

The judgment is affirmed.


text:
    MICHAEL FONTANELLA ET AL. v. CHRYSLER CORPORATION ET AL.
    (AC 19313)
    Landau, Spear and Hennessy, Js.
    Submitted on briefs September 15
    officially released October 24, 2000
   Per Curiam.

The judgment is affirmed.


text:
    PATRICIA ZUPPE MYERS v. KENNETH ROY MYERS
    (AC 20287)
    Landau, Spear and Daly, Js.
    Submitted on briefs September 15
    officially released October 24, 2000
   Per Curiam.

The judgment is affirmed.


text:
    LAWRENCE NADEAU v. CITY OF MERIDEN
    (AC 20325)
    Landau, Spear and Daly, Js.
    Submitted on briefs September 15
    officially released October 24, 2000
   Per Curiam.

The judgment is affirmed.


text:
    YVONNE CLOUTIER v. LIBERTY MUTUAL INSURANCE COMPANY
    (AC 18918)
    Landau, Spear and Hennessy, Js.
    Argued September 13
    officially released October 24, 2000
   Per Curiam.

The judgment is affirmed.


text:
    JAMES KIELEY v. COMMISSIONER OF MOTOR VEHICLES
    (AC 20067)
    Landau, Spear and Hennessy, Js.
    Submitted on briefs September 15
    officially released October 31, 2000
   Per Curiam.

The judgment is affirmed.


text:
    BIJAY SHANKAR SAHA v. PRITI DUTTA SAHA
    (AC 20126)
    Landau, Spear and Hennessy, Js.
    Submitted on briefs September 15
    officially released October 31, 2000
   Per Curiam.

The judgment is affirmed.


text:
    ALBERT NYVELDT v. DEPARTMENT OF CORRECTION
    (AC 20735)
    Sehaller, Zarella and Pellegrino, Js.
    Submitted on briefs September 15
    officially released October 31, 2000
   Per Curiam.

The judgment is affirmed.


text:
    WILLIAM F. BENNETT v. WILLIAM J. BAKER
    (AC 20090)
    Sehaller, Zarella and Pellegrino, Js.
    Submitted on briefs September 15
    officially released October 31, 2000
   Per Curiam.

The judgment is affirmed.


text:
    MYRNA LABOW v. RONALD LABOW
    (AC 19679)
    Lavery, C. J., and Foti and O’Connell, Js.
    Submitted on briefs September 15
    officially released October 31, 2000
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. DARRIN WELLS
    (AC 19678)
    Sehaller, Zarella and Daly, Js.
    Argued September 20
    officially released October 31, 2000
   Per Curiam.

The judgment is affirmed.


text:
    ZDZISLAW STASKIEWICZ v. STEFANIA POLWACZ
    (AC 20016)
    Schaller, Zarella and Pellegrino, Js.
    Submitted on briefs September 15
    officially released October 31, 2000
   Per Curiam.

The judgment is affirmed.


text:
    CYNTHIA RUSSELL ET AL. v. MAUREEN BOJKO ET AL.
    (AC 20304)
    Schaller, Zarella and Pellegrino, Js.
    Submitted on briefs September 15
    officially released October 31, 2000
   Per Curiam.

The judgment is affirmed.


text:
    KLM INDUSTRIES, INC. v. PATRICK J. BERKERY
    (AC 20221)
    Lavery, C. J., and Foti and Dupont, Js.
    Submitted on briefs September 15
    officially released October 31, 2000
   Per Curiam.

The judgment is affirmed.


text:
    CARLTON E. JOLLEY v. STEVEN FREY
    (AC 20306)
    Lavery, C. J., and Foti and Dupont, Js.
    Submitted on briefs September 15
    officially released October 31, 2000
   Per Curiam.

The judgment is affirmed.


text:
    ERIC A. DUDLEY v. WADSWORTH GLEN ET AL.
    (AC 20151)
    Lavery, C. J., and Foti and Dupont, Js.
    Submitted on briefs September 15
    officially released November 7, 2000
    Plaintiffs appeal from the workers’ compensation review board.
   Per Curiam.

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


text:
    LAUREL FEDOR ET AL. v. CHRISTINE M. TAYLOR
    (AC 19951)
    Lavery, C. J., and Foti and Dupont, Js.
    Submitted on briefs September 15
    officially released November 7, 2000
   Per Curiam.

The judgment is affirmed.


text:
    THOMAS W. DAWKINS v. MARGUERIE J. CASALENGO ET AL.
    (AC 20048)
    Lavery, C. X, and Foti and Dupont, Js.
    Submitted on briefs September 15
    officially released November 7, 2000
   Per Curiam.

The judgment is affirmed.


text:
    THOMAS CONDON, COADMINISTRATOR (ESTATE OF FLOYD POTTER), ET AL. v. ANTHONY SILANO
    (AC 19315)
    Foti, Spear and Mihalakos, Js.
    Argued September 28
    officially released November 7, 2000
   Per Curiam.

The judgment is affirmed.


text:
    KEVIN STROBEL v. ROSE LI-HWA STROBEL
    (AC 19325)
    Lavery, C. J., and Spear and Mihalakos, Js.
    Argued September 27
    officially released November 7, 2000
   Per Curiam.

The judgment is affirmed.


text:
    JAMES AURILIO v. THOMAS SWEENEY, CHIEF OF POLICE
    (AC 19577)
    Mihalakos, Pellegrino and Daly, Js.
    Submitted on briefs September 29
    officially released November 7, 2000
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. GEORGE WHITEHOUSE
    (AC 19470)
    Foti, Spear and Pellegrino, Js.
    Argued October 16
    officially released November 7, 2000
   Per Curiam.

The judgment is affirmed.


text:
    JAMES CIVITELLO v. K.L.C., INC.
    (AC 20097)
    Foti, Spear and O’Connell, Js.
    Submitted on briefs October 18
    officially released November 7, 2000
   Per Curiam.

The judgment is affirmed.


text:
    DOROTHY AFRICANO ET AL. v. SANDRA AFRICANO DIXON ET AL.
    (AC 20081)
    Foti, Spear and O’Connell, Js.
    Submitted on briefs October 18
    officially released November 7, 2000
   Per Curiam.

The judgment is affirmed.


text:
    JOHN C. FITZGERALD, JR., CONSERVATOR (ESTATE AND PERSON OF BARBARA JANE PECK) v. NELLIE M. LEGNOS ET AL.
    (AC 20215)
    Foti, Spear and Hennessy, Js.
    Submitted on briefs October 18
    officially released November 7, 2000
   Per Curiam.

The judgment is affirmed.


text:
    RAYMOND COSTA v. MARGARET A. COHEN ET AL.
    (AC 20401)
    Schaller, Mihalakos and Zarella, Js.
    officially released November 21, 2000
   Per Curiam.

The judgment is affirmed.


text:
    DONNA MCCORMICK v. STOP AND SHOP SUPERMARKET COMPANY, INC.
    (AC 20404)
    Lavery, C. J., and Landau and Pellegrino, Js.
    Submitted on briefs October 18
    officially released November 21, 2000
   Per Curiam.

The judgment is affirmed.


text:
    RAMON SANCHEZ v. COMMISSIONER OF CORRECTION
    (AC 18999)
    Lavery, C. J., and Landau and Pellegrino, Js.
    Submitted on briefs October 18
    officially released November 21, 2000
   Per Curiam.

The appeal is dismissed.


text:
    CONNECTICUT RESOURCES RECOVERY AUTHORITY ET AL. v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 19437)
    Lavery, C. J., and Landau and Pellegrino, Js.
    Submitted on briefs October 18
    officially released November 21, 2000
   Per Curiam.

The judgment is affirmed.


text:
    DANIEL HENDERSON v. COMMISSIONER OF CORRECTION
    (AC 20006)
    Spear, Zarella and Daly, Js.
    Argued October 30
    officially released November 21, 2000
   Per Curiam.

The judgment is affirmed.


text:
    WETHERSFIELD FEDERATION OF TEACHERS v. BOARD OF EDUCATION OF THE TOWN OF WETHERSFIELD
    (AC 19755)
    Landau, Pellegrino and Dupont, Js.
    Argued November 1
    officially released November 21, 2000
   Per Curiam.

The judgment is affirmed.


text:
    HALYNA GOODENOW v. ROBERT GOODENOW
    (AC 19839)
    Foti, Landau and Pellegrino, Js.
    Submitted on briefs November 2
    officially released November 21, 2000
   Per Curiam.

The judgment is affirmed.


author: FOTI, J.

text:
    TUTHILL FINANCE v. ARTHUR GREENLAW ET AL.
    (AC 18476)
    Foti, Mihalakos and Spallone, Js.
    Argued May 5
    officially released December 5, 2000

      M. Dean Montgomery, for the appellant-appellee (plaintiff).

      Hanon W. Russell, with whom was Peter L. Truebner, for the appellees-appellants (defendants).
   Opinion

FOTI, J.

In this action, the plaintiff partnership, Tut-hill Finance, has appealed and the defendants have cross appealed from the judgment of the trial court rendered in favor of the plaintiff on its two count complaint alleging negligent misrepresentation and breach of contract. The plaintiff contends that the court improperly (1) determined the date as of which the plaintiffs damages should be calculated, (2) determined the amount of the plaintiff’s damages and (3) granted the defendants’ motion to strike the third count of the plaintiffs August 26, 1991 amended complaint, which alleged a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The defendants, Arthur Greenlaw, Leonard D’Agostino and ABC America’s Homebuying Consultants, Inc. (ABC), argue in their cross appeal that the court improperly discounted the value of the subject property to reflect an estimated two year delay in the time necessary to sell the lots. We reverse in part the judgment of the trial court.

The following facts are relevant to this appeal. After a trial to an attorney trial referee (referee) and with due consideration of the parties’ motions filed after the submission of the referee’s report, the court, in a memorandum of decision dated May 4, 1998, determined that the plaintiff was entitled to recover from the defendants $280,738 plus costs.

In essence, this case involves the calculation of damages in a dispute between a mortgage lender and real estate appraisers. The plaintiff is a partnership that makes subprime or equity loans to borrowers whose credit standing prevents them from qualifying for conventional mortgage loans. The defendants Greenlaw and D’Agostino are principals and officers of the defendant ABC, a real estate appraisal company.

In 1989, United Financial Funding (United), a mortgage broker, retained the defendants to appraise twelve unimproved lots in a subdivision in New Milford, each lot consisting of approximately one-half acre. The defendants submitted an appraisal to United indicating a value per lot of approximately $65,000 for a total of $715,000. In reliance on the appraisals, the plaintiff loaned $315,000 to Wilfred Megin, who gave to the plaintiff as security for the loan a mortgage that encumbered all twelve lots.

The type of loan made by the plaintiff does not rely on the credit of the borrower. It relies exclusively on the equity in the borrower’s mortgaged premises. The individual defendants, Greenlaw and D’Agostino, were disclosed agents of the defendant ABC. Megin applied to United for a mortgage loan. United forwarded the application to the plaintiff as a potential mortgagee. The defendants knew that their appraisal furnished to United in March, 1989, would be forwarded to potential mortgagees. The defendants, whose appraisal was of eleven lots, nevertheless indicated that twelve lots were worth a total of $788,000. The plaintiffs loan to Megin was for one year at an interest rate of 18 percent. The loan of $315,000, made on the basis of the appraisal, was 40 percent of the appraised value. The actual value of the twelve lots was $230,000. The defendants knew or were charged with the knowledge that the mortgagee, in making an asset-based loan, would rely on the appraisal and that the defendants were responsible for its accuracy. There were twelve lots mortgaged to the plaintiff, but only eleven lots were appraised by the defendants. The plaintiff accepted a mortgage on lot 20 without an appraisal as the result of an error in which lot 20 was confused with lot 24. The appraisal submitted by the defendants failed to include information that the lots had substantial rocky ledges and steep slopes, that they were nonconforming as to area, that only four of the lots could be built on because they had to be combined to conform to the requirements of an R-80 zone and that there were comparable sales that the defendants failed to include in their appraisal.

After Megin defaulted, the plaintiff commenced a foreclosure action against him in December, 1989. A judgment of strict foreclosure was rendered against Megin resulting in title vesting in the plaintiff on September 1, 1994. Subsequently, the plaintiff obtained a deficiency judgment against Megin in the amount of $604,942.16 as of the date title vested, representing the debt interest and related expenses, less $90,000 attributed to the value of the foreclosed premises.

The referee’s conclusions, which the court accepted and adopted, were that (1) the plaintiff proved that it sustained a monetary loss caused by the negligence of the defendants in that they failed to conform to the standard of care required of real estate appraisers, (2) the defendants warranted that their appraisal could be relied on by a mortgagee, (3) the plaintiff had a right to and did rely exclusively on the defendants’ appraisal in making the loan to Megin and not on Megin’s creditworthiness, (4) the parties intended that the plaintiff would be a third party beneficiary of the contract between ABC and United and as such had the right to enforce that contract, (5) the value of the lots had to be discounted from $230,000 to $155,000 to reflect the period of two years to market the lots, (6) the defendants failed to prove their special defense of contributory negligence because the plaintiff had the right to rely on the appraisal without conducting an independent investigation, (7) the plaintiff mitigated damages by promptly starting a foreclosure action and proceeding in a reasonably expeditious fashion thereafter, (8) damages to the plaintiff are to be measured at the time the defendants’ appraisal was submitted and the loan made, and not as subsequent events unfurled, including a change in the market value of the collateral, because the plaintiff should know that many mortgagors are successful in “dragging out” foreclosure proceedings and (9) the plaintiff was damaged in the amount of $280,373.

After due consideration of the defendants’ motions to correct and both parties’ exceptions to the referee’s report, the court rendered judgment in favor of the plaintiff against the defendants for $280,738 plus taxable costs. This appeal followed.

I

In its first claim, the plaintiff contends that the court improperly determined the date from which damages should be calculated. We agree and therefore reverse the judgment as to the plaintiff’s appeal and remand the case to the trial court for a redetermination of damages.

The court fixed June 29, 1989, as the date on which the damages to the plaintiff should be calculated. The referee concluded that the lending date, June 29, 1989, which was the date of the completion of the appraisers’ task and after which the effect of their completed work was no longer within their purview and control, equitably, was the proper date to be used for the determination of damages. We disagree.

The appraiser was required to perform a particular duty, which was to provide a lender with an appraisal of the premises used as security for a loan. While we agree that the appraiser was not an investor with the plaintiff and not responsible for any losses due to the default of a third party, and that the precipitating event that led to the enhanced losses by the plaintiff was the breach of contract by the borrower, Megin, when he defaulted on his loan, we cannot conclude that the subsequent mortgage foreclosures, bankruptcy and delays accruing after the borrower’s default had no relationship to the defendants’ appraisal. Although the plaintiff chose to make a high risk loan that was not based on the creditworthiness of the borrower, damages assessable against the defendants cannot be limited by the plaintiffs loss as of the date of the making of the loan, the date the appraiser’s work was completed.

Although our standard of review of the court’s findings of fact is whether they are “clearly erroneous,” the extent of loss for which an appraiser should be legally responsible is a question of law, subject to plenary review. First Federal Savings & Loan Assn. of Roches ter v. Charter Appraisal Co., 247 Conn. 597, 603, 724 A.2d 497 (1999).

The parties agree that the purpose of the appraisal for a lender is that it is intended to demonstrate that the property provided adequate security for the amount of the mortgage loan, rather than to assure the bank that the borrowers would not default. In this action, the plaintiff seeks damages occurring when and after the value of the property is applied to satisfy the judgment following strict foreclosure. We apply and accept the same rationale as was approved by our Supreme Court in Charter Appraisal Co., which is that the calculation of damages should be measured and determined from the time that title vested as determined in the foreclosure proceeding. Id., 611. We must therefore conclude that the court’s acceptance of the referee’s finding that the date of the making of the mortgage was the date from which the plaintiffs damages are to be measured is an incorrect date as a matter of law. We are not unaware that the referee made a specific finding that the plaintiff did not prove that its postdefault damages were proximately caused by the defendants’ negligence and breach of contract.

The plaintiff has the burden of proving that the defendants’ actions were the proximate cause of its losses. Id., 608. Although the duty of the defendants cannot be extended to protect the plaintiff from loss arising from a subsequent general decline in real estate values; see id., 607; losses proven to have been sustained that are within the scope of risk created by the negligently conducted appraisal are the defendants’ responsibility. It is the defendants’ burden of proving that the plaintiff failed to take reasonable efforts to mitigate its damages. See id., 615.

Compensatory damages in this type of action are awarded to restore the plaintiff to the position it would have been in had the wrong not been committed. Such calculation of damages in this matter is neither speculative nor remote.

II

The plaintiff next claims that the court improperly granted the defendants’ motion to strike the third count of its amended complaint alleging that the defendants violated CUTPA. “After a trial court has sustained a motion to strike a complaint or a portion of the complaint, the plaintiff has two options. He may amend his pleading, or he may stand on his original pleading, allow judgment to be rendered against him, and appeal the sustaining of the [motion to strike]. . . . The choices are mutually exclusive.” (Internal quotation marks omitted.) P & L Properties, Inc. v. Schnip Development Corp., 35 Conn. App. 46, 49, 643 A.2d 1302, cert. denied, 231 Conn. 913, 648 A.2d 155 (1994). Following the granting of the motion to strike on October 28, 1991, the plaintiff neither moved for judgment on the stricken count nor attempted to reserve its appeal pursuant to Practice Book § 4002 (a). Because the plaintiff did nothing to pursue its unreserved appeal on the granting of the motion to strike, it waived the right to claim on appeal that the granting of the motion was improper. See, e.g., Parsons v. United Technologies Corp., 243 Conn. 66, 74, 700 A.2d 655 (1997); P & L Properties, Inc. v. Schnip Development Corp., supra, 49.

Ill

The defendants have filed a cross appeal, claiming that the court improperly discounted the actual fail-market value of the property as of June 29, 1989, the date the loan was made, by discounting it over two years, the estimated time necessary to sell the lots. Because we have concluded that the plaintiffs damages, in this case, are measured not as of the date of the making of the loan, but rather at the time that title vested, we find it unnecessary to address this claim and dismiss the defendants’ cross appeal.

The judgment is reversed on the plaintiffs appeal only as to the trial court’s calculation of damages and the matter is remanded for further proceedings to recalculate the award of damages consistent with this opinion. The defendants’ cross appeal is dismissed.

In this opinion the other judges concurred.

       See footnote 4.

       The plaintiffs damages were calculated as follows: The difference between what the actual loan would have been if the defendants had accurately reported the true value of the lots, and if the plaintiff had maintained the same 40 percent loan to collateral ratio, which is $62,000—$62,000 deducted from $315,000, the amount of the loan to Megin, is $253,000. That amount was reduced by $21,083 to $231,917 because lot 20 was not appraised and further reduced by the value of the land acquired by the plaintiff, excluding lot 20 ($82,958), to an amount of $148,959. Added to that was $131,373, on the basis of General Statutes § 37-3a, equaling 10 percent interest running from the date of the loan to Megin to the date of judgment for a total of $280,738.

         Judgment was rendered in this matter on May 4, 1998; the decision in First Federal Savings & Loan Assn. of Rochester v. Charter Appraisal Co., supra, 247 Conn. 597, was published on February 2, 1999.

       Because we conclude as we do, the plaintiffs second issue on appeal, concerning the new calculation of damages, will be determined by the trial court on remand.

       At the time of the granting of the defendants’ motion to strike, Practice Book § 4002 (a) provided in relevant part: “A judgment disposing of certain of the issues between the parties or of part or all of the issues between some of them in such a manner as to be final but not terminating the litigation . . . may be treated as a final judgment for the purpose of an appeal by the party or parties against whom the judgment is rendered, notwithstanding that the cause remains undisposed of on other issues or as to other parties; but the party or parties may, at their option, reserve their appeal until the final judgment is rendered which disposes of the cause for all purposes and as respects all parties; provided, in such a case, that notice of such reserving of appeal shall be filed in the trial court accompanied by a certification that a copy thereof has been served on each counsel of record in accordance with the provisions of Sec. 120 within

        twenty days after issuance of notice of the rendition of the judgment disposing of part of the issues.” (Emphasis added.)


author: HENNESSY, J.

text:
    GARY B. KELLY v. CITY OF BRIDGEPORT
    (AC 19443)
    Schaller, Hennessy and Daly, Js.

      Argued May 9
    officially released December 5, 2000

      Frank A. May, for the appellant (defendant).

      William L. Cotter, for the appellee (plaintiff).

      Mary-Michelle U. Hirschoff filed a brief for the Connecticut Conference of Municipalities and the Connecticut Interlocal Risk Management Agency as amicus curiae.

      Richard Blumenthal, attorney general, and William J. McCullough and Philip M. Schulz, assistant attorneys general, filed a brief for the state department of administrative services as amicus curiae.
   Opinion

HENNESSY, J.

The defendant, the city of Bridgeport (city), appeals from the decision of the compensation review board (board) affirming the workers’ compensation commissioner’s finding that the plaintiff, Gary B. Kelly, is entitled to benefits pursuant to General Statutes § 31-284b even though he is no longer receiving weekly disability benefits under General Statutes § 7-433c. We reverse the decision of the board.

The commissioner found the following facts. The plaintiff is a retired police officer who qualified for benefits pursuant to § 7-433c, commonly referred to as the Heart and Hypertension Act, after suffering a heart attack on March 6, 1991. He also received separate disability pension payments from the city for group health and medical coverage, which included dental and vision benefits, and life insurance for himself and his family. The city canceled the group coverage for the plaintiff and his family effective September 1,1996, after learning that the plaintiff was no longer receiving indemnity benefits under § 7-433c. The city, however, continued to pay benefits under the plaintiffs compensation claim, consisting of semiannual physician visits for his § 7-433c condition along with payments for drugs prescribed by his physician related to his compensa-ble condition.

The plaintiff sought reinstatement of his dental, vision and life insurance coverage pursuant to § 31-284b. He claimed that as long as he received benefits under § 7-433c, he was entitled to dental and vision benefits, and life insurance at the city’s expense. The city contended that the plaintiff no longer was entitled to those benefits under § 31-284b because he no longer was receiving a weekly indemnity benefit intended to compensate him for disability, wage loss or lost earning capacity. The commissioner found that the plaintiff qualified for the dental, vision and life insurance coverage that was in effect in 1991, and ordered the city to reinstate such benefits. The board affirmed the commissioner’s finding and award. The city now appeals.

As a threshold matter, we set forth the standard of review applicable to workers’ compensation appeals. “The principles that govern our standard of review in workers’ compensation appeals are well established. 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. . . . Besade v. Interstate Security Services, 212 Conn. 441, 449, 562 A.2d 1086 (1989). . . . It is well established that [although 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. . . . Duni v. United Technologies Corp., 239 Conn. 19, 24-25, 682 A.2d 99 (1996); Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995). 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. ” (Citations omitted; internal quotation marks omitted.) Dowling v. Slotnik, 244 Conn. 781, 797-98, 712 A.2d 396, cert. denied sub nom. Slotnik v. Considine, 525 U.S. 1017, 119 S. Ct. 542, 142 L. Ed. 2d 451 (1998).

The interpretation of § 31-284b is a matter of statutory construction. “Statutory construction is a question of law and therefore our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) General Motors Corp. v. Doh-mann, 247 Conn. 274, 286, 722 A.2d 1205 (1998); Fer-rigno v. Cromwell Development Associates, 244 Conn. 189, 195, 708 A.2d 1371 (1998). “As with any issue of statutory interpretation, our initial guide is the language of the operative statutory provisions.” (Internal quotation marks omitted.) Fimiani v. Star Gallo Distributors, Inc., 248 Conn. 635, 641-42, 729 A.2d 212 (1999).

In this appeal, the city argues that § 31-284b does not require an employer to provide health insurance coverage to an employee receiving coverage for medical care and prescriptions after indemnity payments have ceased, and that the board therefore improperly affirmed the commissioner’s conclusion that the city was obligated to provide health insurance coverage to the plaintiff and his family. We agree.

General Statutes (Rev. to 1991) § 31-284b (a), which was in effect at the time of the plaintiffs injury, provides in relevant part: “In order to maintain, as nearly as possible, the income of employees who suffer employment-related injuries, any employer . . . who provides accident and health insurance or life insurance coverage for any employee . . . shall provide to such employee equivalent insurance coverage . . . while the employee is eligible to receive or is receiving workers’ compensation payments pursuant to this chapter, or while the employee is receiving wages under a provision for sick leave payments for time lost due to an employment-related injury.” (Emphasis added.) The city argues that § 31-284b (a) benefits are triggered during periods of time when an injured employee is receiving or entitled to receive “compensation payments . . . or . . . wages under a provision for sick leave payments for time lost due to an employment-related injury.” The city claims that the meaning of “compensation payments” as used in the statute must be limited to indemnity payments, or those payments for time lost due to an employment-related injury. Once those payments cease, even though the claimant is covered under § 7-433c for physician’s visits and prescribed medication related to the injury, the employer is no longer obligated to provide group health insurance providing dental and vision benefits and life insurance for the claimant and his family.

The board, in affirming the decision of the commissioner, held that the commissioner correctly ruled “that although the claimant was not currently receiving indemnity benefits, the medical bills being paid by the city constituted compensation benefits. Thus, the claimant was receiving or eligible to receive compensation payments within the meaning of § 31-284b.” (Emphasis added.) In so concluding, the board relied on a definition of compensation from General Statutes § 31-293 because neither § 31-284b nor General Statutes (Rev. to 1991) § 31-275, the general definitional section for the Workers’ Compensation Act, contained such a definition. The board stated that “ja]t the time of the claimant’s injuiy, § 31-293 stated that [t]he word compensation, as used in this section, shall be construed to include not only incapacity payments to an injured employee and payments to the dependents of a deceased employee, but also sums paid out for surgical, medical and hospital services to an injured employee . . . .” (Emphasis added; internal quotation marks omitted.) The board recognized that Public Acts 1991, No. 91-32 (P.A. 91-32), had amended §31-275 effective July 1, 1991, to include in subdivision (4) a definition of compensation similar to that contained in § 31-293.

The city argues that the board’s reliance on the definition of “compensation” contained in § 31-293, the third party lien statute, to define “compensation payments” in § 31-284b is improper. We agree. Section 31-293 provides that “the word ‘compensation,’ as used in this section, shall be construed to include . . . sums paid out for surgical, medical and hospital services . . . .” (Emphasis added.) By the words of the statute themselves, that definition of “compensation” applies only to § 31-293 and not to § 31-284b. Furthermore, § 31-275, as amended by P.A. 91-32 to include a definition of compensation similar to that previously contained in § 31-293, does not apply to this case. The claimant’s substantive right to benefits is governed by the law as it existed on the date of his injury. Iacomacci v. Trumbull, 209 Conn. 219, 222, 550 A.2d 640 (1988); see Civardi v. Norwich, 231 Conn. 287, 293 n.8, 649 A.2d 523 (1994) (applying version of § 31-275 at time of injury rather than using amended version to define “compensation”).

Construing the statutes as they existed at the time of the plaintiffs injury, we conclude that the term “compensation payments” as used in § 31-284b (a) does not include payments for medical care after the indemnity compensation period has ceased. The statute mandates that an employer is required to continue insurance benefits only while an employee is receiving “compensation payments” for disability under the Workers’ Compensation Act.

The plaintiff argues that the board’s decision should be affirmed because the board sought to further the underlying purpose of the Workers’ Compensation Act by enforcing the express objective of § 31-284b (a) that seeks to “maintain, as nearly as possible, the income of employees who suffer employment-related injuries . . . .” General Statutes (Rev. to 1991) § 31-275 (14) defines the term “income” as “all forms of remuneration to an individual from his employment, including wages, accident and health insurance coverage . . . .” In addition, the plaintiff, quoting Misenti v. International Silver Co., 215 Conn. 206, 210, 575 A.2d 690 (1990), argues that“ ‘[bjecause the Workers’ Compensation Act is a remedial statute, this court should not impose limitations on the benefits provided for a disabled worker that the statute itself does not clearly specify.’ ” In Carriero v. Naugatuck, 243 Conn. 747, 707 A.2d 706 (1998), the plaintiff made a similar claim. The court in that case stated: “[T]he plaintiff argues that our determination of the present case should be controlled by application of the interpretive axiom that, in order to facilitate the accomplishment of the objectives of remedial legislation, the limitations on that legislation should be interpreted narrowly. It is true that this court has, in the past, found that axiom helpful in construing aspects of the Heart and Hypertension Act. See Szudora v. Fairfield, 214 Conn. 552, 559, 573 A.2d 1 (1990) ([i]n light of the remedial nature of the Heart and Hypertension Act, this court should not impose greater constraints on the benefits afforded to disabled police officers and firefighters than the legislature has chosen to adopt) .... Axioms such as this, however, cannot displace the need for careful and thoughtful interpretation of [the statutory provisions at issue], nor can they displace the firm conclusions that such a process of interpretation yields. [Such] axioms, like all rules or canons of statutory construction, serve as important guidelines to the determination of legislative meaning. To permit them to displace the conclusions that careful interpretation yields, however, would be a disservice to the legislative process, as well as to the judicial exercise of interpreting legislative language based upon the premise that the legislature intends to enact reasonable public policies. United Illuminating Co. v. New Haven, [240 Conn. 422, 454-55, 692 A.2d 742 (1997)].” (Citation omitted; internal quotation marks omitted.) Carriero v. Naugatuck, supra, 761-62.

In Crocetto v. Lynn Development Corp., 223 Conn. 376, 612 A.2d 1212 (1992), the issue was whether a subsistence allowance provided to a plaintiff who had exhausted his disability benefits and subsequently had his health insurance coverage terminated, constituted “workers’ compensation payments” within the meaning of § 31-284b. The Supreme Court determined that the subsistence payments did not qualify as workers’ compensation payments under § 31-284b. Id., 381. As such, they could not be used to support an award of § 31-284b benefits. The court in Crocetto viewed the case in the light of a need for the plaintiff to be receiving payments required by statute or regulation to trigger § 31-284b coverage. Id., 382. Comparing the payments for the plaintiffs medical care in the present case to those ruled not to constitute compensation in Crocetto, we conclude that the payments received in this case are less like compensation than the ones in Crocetto and therefore do not trigger § 31-284b benefits.

We conclude, therefore, that the board incorrectly interpreted § 31-284b as requiring the city to continue insurance coverage for the plaintiff and his family once the plaintiffs workers’ compensation payments ended.

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

In this opinion the other judges concurred.

       The Connecticut department of administrative services, the Connecticut conference of municipalities and the Connecticut interlocal risk management agency filed briefs in support of the city.

       General Statutes (Rev. to 1991) § 31-284b (a) provides: “In order to maintain, as nearly as possible, the income of employees who suffer employment-related injuries, any employer, as defined in section 31-275, who provides accident and health insurance or life insurance coverage for any employee or makes payments or contributions at the regular hourly or weekly rate for full-time employees to an employee welfare fund, as defined in section 31-53, shall provide to such employee equivalent insurance coverage or welfare fund payments or contributions while the employee is eligible to receive or is receiving workers’ compensation payments pursuant to this chapter, or while the employee is receiving wages under a provision for sick leave payments for time lost due to an employment-related injury.”

       General Statutes § 7-433c (a) provides: “Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems. The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability. As used in this section, the term ‘municipal employer’ shall have the same meaning and shall be defined as said term is defined in section 7-467.”

       Section 31-284b (a) was amended by Public Acts 1991, No. 91-32, to condition the employer’s obligation to provide insurance coverage on the employee’s receipt of “compensation pursuant to this chapter” as opposed to “workers’ compensation payments pursuant to this chapter.”

       Subsequent to its amendment in 1991, General Statutes § 31-275 (4) provides: “ ‘Compensation’ means benefits or payments mandated by the provisions of this chapter, including, but not limited to, indemnity, medical and surgical aid or hospital and nursing service required under section 31-294d and any type of payment for disability, whether for total or partial disability of a permanent or temporary nature, death benefit, funeral expense, payments made under the provisions of section 31-284b, 31-293a or 31-310, or any adjustment in benefits or payments required by this chapter. ”

       Although both parties maintain that the wording of General Statutes § 31-284b is clear and that no legislative history is necessary to clarify its meaning, the city has cited to several remarks of legislators relating to § 31-284b that it claims support its position. The plaintiff argues that the cited remarks are insufficient to support the city’s claim. After reviewing the legislative history, we find that it does not help us to define clearly the term “compensation payments” as it is used in § 31-284b. While it is correct that the portions of legislative history referred to by the city suggest that continuing insurance coverage of an injured employee by his or her employer is for an employee who is “drawing workmen’s compensation pay or sick pay,” “while they are incapacitated” or “while they’re out on workmen’s compensation,” there are no comments directed to the situation presented in this case where indemnity payments have ceased. The focus of the legislative comments are on the period when the employee is receiving regular compensation payments.