author: O’CONNELL, J.

text:
    STATE OF CONNECTICUT v. GEORGE MOORE
    (AC 20037)
    Lavery, C. J., and Mihalakos and O’Connell, Js.
    Argued June 6
    officially released September 25, 2001

      Martin Zeldis, senior public defender, with whom were Andrea A. Dunn, certified legal intern, and, on the brief, Pamela S. Nagy, assistant public defender, and Rebecca A. Steeves, certified legal intern, for the appellant (defendant).

      Ronald Weller, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Vicki Melchiorre, senior assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and (3), and assault in the third degree in violation of General Statutes § 53a-61 (a) (l). The defendant claims that the judgment of conviction should be reversed and that he should be given a new trial because (1) the trial court improperly admitted evidence of his prior assault on the victim, (2) he was deprived of a fair trial by prosecutorial misconduct and (3) the trial court failed to maintain impartiality. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and Willard Young, the victim of the first degree assault, both resided on the third floor of an apartment house on Mather Street in Hartford and had a history of disagreements culminating in violence. On May 6,1998, the defendant and Young engaged in a fight in which the defendant, after knocking a butter knife out of Young’s hand, was fearful that Young was returning to his room for another weapon. The defendant, who was wearing cowboy boots and who claimed to have martial arts training, kicked Young fifty-four times. After Young fell to the floor, the defendant satisfied himself that Young was unconscious by checking his pulse and then proceeded to stomp on his head three times. The defendant argues that his conduct was justified as self-defense.

Young was transported to Saint Francis Hospital and Medical Center where he was placed on a life support apparatus. He suffered serious injuries including brain trauma, subdural hematoma, scars over his eyes, speech problems and sleeplessness. He was a heavy drinker and, at the emergency room, had a 0.34 blood alcohol content.

Willie Fair, the third degree assault victim, also resided in the same apartment building and was attracted to the scene by the noise. Thinking that Fair was going to intervene, the defendant kicked him in the groin, causing him pain.

I

The defendant first claims that the court abused its discretion by permitting the state to introduce evidence that the defendant had assaulted Young approximately six months prior to the present assault. The record shows that the court granted the defendant’s motion in limine to preclude the state from referring to his prior criminal record. The defendant also obtained an order requiring the state to give him notice of all prior acts of misconduct that the state intended to use against him. The general rule is that evidence of prior acts of misconduct or involvement in prior crimes is not admissible to show a defendant’s bad character or tendency to commit criminal acts. State v. Pollitt, 205 Conn. 61, 69, 530 A.2d 155 (1987).

The defendant challenges (1) the admissibility of evidence of his prior assault on Young and (2) the admissibility, both in the state’s case-in-chief and on rebuttal, of the counseling for violence that he received as a result of the previous assault.

The issue arose when the state, on cross-examination of the defendant, began questioning him concerning a prior incident in which he allegedly also kicked Young in the head, which incident resulted in the defendant receiving counseling on alternative solutions to violence. The defendant argues that this cross-examination, as well as the testimony on rebuttal from the defendant’s violence counselor, violated the letter and spirit of the motion in limine and the order pertaining to prior bad acts. The purpose of the motion in limine and the order was to ensure that the jury did not learn of the prior incident and counseling until the court had heard and ruled on their admissibility. This was a proper utilization of these motions and a violation of them might lead to a valid objection if there was nothing more to the equation.

In this case, however, the jury already had learned of the prior assault when the court admitted the defendant’s voluntary written statement into evidence without objection. The defendant initially had objected to the admission of this statement, but then specifically withdrew his objection and asked that the statement be admitted. Even if we were to assume, without deciding, that the court’s ruling was improper, it would not be a reason to reverse the judgment of conviction. It is well established that an improper ruling should not be considered reversible error if the evidence admitted thereby has already properly entered the case. State v. McNair, 54 Conn. App. 807, 814, 738 A.2d 689, cert, denied, 251 Conn. 913, 739 A.2d 1249 (1999). Accordingly, the admission of evidence of the prior assault was not improper because it was merely cumulative of what was already before the jury from the defendant’s statement. See State v. Randolph, 190 Conn. 576, 589-90, 462 A.2d 1011 (1983).

On cross-examination, the defendant denied that he had received counseling for violence. To rebut this denial, the state called John Mahoney, who had worked for a program called “Community Solution Pretrial Services.” Mahoney testified concerning his counseling of the defendant in alternative responses to avoid violence.

The defendant’s sole objection to Mahoney’s testimony was on the ground that it was a privileged communication. The court denied the objection on that ground, and the defendant does not appeal concerning the court’s ruling on the issue of privilege. Instead, he now argues that Mahoney’s testimony was improperly offered to impeach a collateral matter.

“Appellate review of evidentiary rulings is ordinarily limited to the specific legal issue raised by the objection of trial counsel. See State v. Rothenberg, 195 Conn. 253, 263, 487 A.2d 545 (1985). The purpose of requiring trial counsel to object properly is not merely formal: it serves to alert the trial court to purported error while there is time to correct it without ordering a retrial. Id. By failing to object . . . the defendant failed to preserve this claim. State v. Couture, 194 Conn. 530, 553-54, 482 A.2d 300 (1984), cert, denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985); see also Practice Book §§ 288 and 4185 [now §§ 5-5 and 60-5].” State v. Christiano, 228 Conn. 456, 464, 637 A.2d 382, cert, denied, 513 U.S. 821, 115 S. Ct. 83, 130 L. Ed. 2d 36 (1994); see State v. Dukes, 29 Conn. App. 409, 416-17, 616 A.2d 800 (1992), cert, denied, 224 Conn. 928, 619 A.2d 851 (1993). “We have not yet reached a jurisprudential stage where we require trial judges to be mentally telepathic. Thus, we have consistently declined to review claims based on a ground different from that raised in the trial court.” State v. Ulen, 31 Conn. App. 20, 29, 623 A.2d 70, cert, denied, 226 Conn. 905, 625 A.2d 1378 (1993). Accordingly, we will not review this unpreserved claim.

II

The defendant next claims that the state’s attorney violated his right to a fair trial by expressing her personal opinion, by improperly characterizing another witness’ testimony and by violating the motion in limine concerning evidence of prior bad acts.

Our standard of review of prosecutorial misconduct is well established. “In analyzing this claim, we do not focus solely on the prosecutor’s conduct. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” (Internal quotation marks omitted.) State v. Jeudis, 62 Conn. App. 787, 793, 772 A.2d 715, cert, denied, 256 Conn. 923, 774 A.2d 140 (2001). “In determining whether the defendant was denied a fair trial we must view the prosecutor’s comments in the context of the entire trial. ... In examining the prosecutor’s argument we must distinguish between those comments whose effects may be removed by appropriate instructions . . . and those which are flagrant and therefore deny the accused a fair trial. . . . The defendant bears the burden of proving that the prosecutor’s statements were improper in that they were prejudicial and deprived him of a fair trial. ... In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted; internal quotation marks omitted.) State v. Brown, 256 Conn. 291, 297-98, 772 A.2d 1107 (2001).

The defendant claims that during cross-examination and closing argument, the prosecutor, through sarcasm and direct comments, improperly injected her own opinion as to the credibility of the defendant’s self-defense theory.

During cross-examination of the defendant, the prosecutor questioned him regarding his claim of self-defense and stated: “All right. So you’re telling me now, it wasn’t self-defense? You just snapped, lost your temper .... All right. So he didn’t lose consciousness until the fifty-fourth kick, is that what you’re telling me?” Defense counsel objected to both of these remarks, and the jury was excused. The court warned the prosecutor not to characterize the evidence and that he would properly instruct the jury on its duty to decide the evidence as it hears it.

In her closing argument, the prosecutor stated: “Nobody in their right mind, no reasonable person could believe that they needed to use force in self-defense against a helpless man, unarmed, lying face down in a pool of blood. This defense, in short, ladies and gentlemen, is totally ridiculous. ... So I apologize. When I called it ridiculous, it’s not a credible defense. All right. It’s just not credible. ... I submit to you he was lying and waited for this victim and when this victim came up to his door and tried to put the key in his door, he saw his opportunity and he did his Bruce Lee imitation, and he went over and kicked him in the left side of the head and that knocked the victim unconscious.” Defense counsel objected several times during the state’s closing argument and moved for a mistrial on the grounds that the prosecutor vouched for the charges, personally appealed to the jurors and misrepresented the law of self-defense. The court noted that there was some vouching but that it was not egregious, and it denied the mistrial motion.

We acknowledge that it is improper for a prosecutor to express his or her opinion, directly or indirectly, as to a defendant’s guilt. State v. Singh, 59 Conn. App. 638, 647, 757 A.2d 1175 (2000), cert, granted on other grounds, 255 Conn. 935, 767 A.2d 1214 (2001). We also recognize, however, that advocates must be allowed latitude in argument to accommodate for the zeal of counsel in the heat of argument. Jenkins v. Commissioner of Correction, 52 Conn. App. 385, 399-400, 726 A.2d 657, cert, denied, 249 Conn. 920, 733 A.2d 233 (1999). “The mere use of phrases such as T submit,’ T find,’ or T believe’ does not constitute improper argument.” Id., 400.

The prosecutor’s comments were an attempt to explore the defense in light of the defendant’s testimony and a summarization of the evidence introduced during trial. Furthermore, any impropriety in the prosecutor’s comments was assuaged by the court’s instructions to the jury to disregard the statements. Viewed in the context of the entire trial, we conclude that the comments did not deprive the defendant of a fair trial.

The defendant also claims that, during closing argument, the prosecutor injected her own expertise into the case when she made the following statements: “The defendant is going to ask for lesser included offenses to try to argue to you that this wasn’t serious physical injury. Come on, gentlemen, use your head here. All right. The man suffered a fractured eye socket. He suffered a hematoma to the brain. He has scars from cuts that he got when he kicked him in the head and the face that went down to the bone, and he was in the hospital for a week, in a rehab hospital for another week and in a nursing home for two months. Certainly you could tell from his testimony that this man still has lingering consequences from this beating. He’s clearly brain damaged”; “[d]on’t be swayed by the arguments for the lesser included offenses. This was an assault in the first degree. This man suffered serious physical injuiy. Now, also part of the bill of particulars which is . . . the charging document that I had to file in order to get this case going forward . . . you’ll see that I charged two different subsections of the assault in the first degree statute. So let’s talk about those for a moment . . . because I think it’s helpful if we do that”; “[ejverybody knows that the brain is a vital organ”; “[w]hen blood dries, you know from your common experience, it doesn’t stay bright red. He’s saying six months ago that’s what this blood is from. You know that’s not true”; and, “That is not self-defense. So even if — I don’t really care whether you credit the defendant’s version or you credit the victim’s version of what happened here — under no version is it self-defense to follow an unarmed, defenseless man who is crawling away from you, rather than toward you, down the hall and stomp on his head fifty-four times.”

We conclude that the prosecutor was merely asking the jury to use its common sense in evaluating the injuries to the victim, the blood at the scene and the defendant’s theory of self-defense. In addition, the court immediately corrected the prosecutor’s isolated comment on the lesser included charges and, therefore, did not permit the comment to prejudice the defendant.

The defendant next claims that he is entitled to a reversal of his conviction because the prosecutor violated the court’s ruling on the motion in limine that precluded the state from referring to the defendant’s prior criminal record.

In part I of this opinion, we determined that the admission of the evidence of the defendant’s prior assault was not improper because it was already before the jury from the defendant’s statement. Furthermore, we cannot say that the prosecutor’s questions were so offensive that a reversal of the defendant’s conviction is necessary. In fact, the court itself found that the prosecutor’s questions did not directly undermine the court’s ruling. Accordingly, we conclude that the prosecutor’s reference to the prior assault did not amount to prosecutorial misconduct.

Finally, the defendant claims that the prosecutor improperly asked the defendant to characterize the testimony of another witness as untruthful. During cross-examination of the defendant, the following colloquy occurred:

“[Prosecutor]: Okay. You can have a seat, sir. And so while [the witness] and you were in the hallway [of your apartment house], you went over and kicked Mr. Young in the head a couple of times. Right?
“[Defendant]: No.
“[Prosecutor]: No? [The witness] was lying about that?
“[Defendant]: Yes.”
“Although our Supreme Court has disapproved of asking one witness to characterize the testimony of another witness, such action does not automatically result in prejudicial error. . . . This is so, particularly in a case where the central issue is one of credibility and the trial court has properly instructed the jury that it is to evaluate the credibility of the witnesses independently and weigh their testimony, as was the case here. In such a case, characterization of testimony by a witness does not deprive the jury of its essential fact finding function.” (Citation omitted.) State v. Harvey, 27 Conn. App. 171, 180-81, 605 A.2d 563, cert, denied, 222 Conn. 907, 608 A.2d 693 (1992). On the basis of our review of the record, we conclude that the prosecutor’s questions were neither inflammatory nor likely to have contributed to the guilty verdict and, therefore, did not constitute prosecutorial misconduct.

Ill

In his final claim, the defendant contends that the court violated his right to a fair trial when it intervened by questioning witnesses and by making partisan comments in front of the jury. The defendant contends that unpreserved claims such as this have been reviewed under the doctrine of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The sole authority cited for this proposition is State v. Harris, 28 Conn. App. 474, 477, 612 A.2d 123, cert, denied, 223 Conn. 926, 614 A.2d 828 (1992). In Harris, this court reviewed the defendant’s claim but concluded that the defendant failed to satisfy the third prong of Golding because the defendant did not demonstrate that a constitutional violation clearly existed that clearly deprived him of a fair trial.

On the basis of our review of the record, we conclude that the court’s questioning of witnesses was for the purpose of clarifying testimony and did not prejudice the defendant. Accordingly, the defendant has failed to prove that a constitutional violation exists under the third prong of Golding and, therefore, cannot prevail on his unpreserved claim.

The state argues that the claim should be controlled by State v. McDuffie, 51 Conn. App. 210, 216, 721 A.2d 142 (1998), cert, denied, 247 Conn. 958, 723 A.2d 814 (1999), and Churchill v. Allessio, 51 Conn. App. 24, 38, 719 A.2d 913, cert, denied, 247 Conn. 951, 723 A.2d 324 (1998). Both of these cases stand for the principle that if the court’s conduct during trial is such that it indicates an appearance of judicial bias, then a motion for disqualification or a motion for a mistrial must be made. “It is a well settled general rule that courts will not review a claim of judicial bias on appeal unless that claim was properly presented to the trial court via a motion for disqualification or a motion for mistrial.” (Internal quotation marks omitted.) Knock v. Knock, 224 Conn. 776, 792, 621 A.2d 267 (1993). “Absent plain error, a claim of judicial bias cannot be reviewed on appeal unless preserved in the trial court.” Small v. Stop & Shop Cos., 42 Conn. App. 660, 663, 680 A.2d 344 (1996). The defendant has made no claim of plain error in this case. Accordingly, we will not review this claim concerning the court’s conduct.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or . . . (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . .

      General Statutes § 53a-3 (4) defines “serious physical injury” as “physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . . .”

       General Statutes § 53a-61 (a) provides in relevant part: “A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person . . .

      General Statutes § 53a-3 (3) defines “physical injury” as “impairment of physical condition or pain . . . .”

       In his voluntary statement, the defendant stated that he had had training in judo, karate and jujitsu.

         A blood alcohol content (BAC) of 0.34 refers to a ratio of alcohol in the blood that is thirty-eight hundredths of 1 percent of alcohol by weight. For purposes of comparison, a person is deemed under the influence of alcohol to the extent that he may not operate a motor vehicle if his BAC is ten hundredths of 1 percent (0.10) or more of alcohol, by weight. See General Statutes § 14-227a (a).

       See footnote 2.

       In his written statement, the defendant stated in part, “Last January, 1998, I got arrested over [Willard Young]. I kicked him in the face and knocked him out because he came to my door with a knife.”

       The defendant objected, and the court instructed the jury to disregard the remark.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    PELAGIA KITMIRIDES ET AL. v. MIDDLESEX MUTUAL ASSURANCE COMPANY
    (AC 21113)
    Dranginis, Flynn and Peters, Js.
    Argued May 7
    officially released September 25, 2001

      Brenden P. Leydon, for the appellants (named plaintiff et al.).

      John W. Mills, for the appellee (defendant).
   Opinion

PETERS, J.

The issue in this case of first impression in Connecticut is the coverage afforded by an insurance policy that lists a person as a driver of a covered vehicle on the declarations page, but does not list that person as a named insured. The trial court found that the description of the named insured was unambiguous and determinative of the rights of the parties. Accordingly, the court ruled in favor of the insurer. The validity of that determination is the sole issue in this appeal. We affirm the judgment of the trial court.

The plaintiff Pelagia Kitmirides, a pedestrian, was struck by an underinsured motorist. She brought an action to recover underinsured motorist benefits under an underinsured motorist provision contained in an automobile insurance policy issued to her father-in-law, Efstathios Kitmirides (father-in-law). The court granted the motion for summary judgment filed by the defendant, Middlesex Mutual Assurance Company, on the ground that the plaintiff was not a named insured and therefore not entitled to underinsured motorist coverage under the policy.

In her appeal, the plaintiff contests the validity of the court’s finding that the underinsured motorist coverage in the defendant’s policy was unavailable to her. The court ruled that the terms of the policy were unambiguous despite the difference between the policy’s declaration page, which included the plaintiff as a listed driver, and the policy’s underinsured motorist provision, which defined “Covered person” in a manner that excluded the plaintiff.

The underlying facts are undisputed. The defendant issued an automobile insurance policy to the plaintiffs father-in-law in 1989. In 1994, he filed a policy change request form with the defendant to add his son Nikolaos Kitmirides and the plaintiff as additional drivers. On or about February 8, 1996, the plaintiff and her mother, Anna Panagiotides, were struck and injured by an underinsured motorist (motorist) while they were walking away from a vehicle owned by the father-in-law.

As of the date of the accident, the plaintiff and Nikolaos were listed on the declarations page under the heading, “DRIVER INFORMATION.” The plaintiff claims that this listing caused her to be a “Covered person” under the underinsured motorist provision portion of the policy.

Before addressing the merits of the plaintiff’s appeal, we must identify the governing standard of review. “We begin our analysis with the general principles governing the construction of insurance policies. An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract and enforced in accordance with the real intent of the parties as expressed in the language employed in the policy. . . . The policy words must be accorded their natural and ordinary meaning. . . . Under well established rules of construction, any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy. . . . This rule of construction may not be applied, however, unless the policy terms are indeed ambiguous. . . . Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous. . . . [C]onstruction of a contract of insurance presents a question of law for the court which this court reviews de novo.” (Internal quotation marks omitted.) Pacific Indemnity Ins. Co. v. Aetna Casualty & Surety Co., 240 Conn. 26, 29-30, 688 A.2d 319 (1997).

The dispositive issue that we must resolve is whether the policy issued by the defendant is ambiguous. Essentially, the plaintiffs argument is that, because she is listed on the declarations page under the heading, “DRIVER INFORMATION,” and the term driver is not defined or explained anywhere in the policy, the policy as a whole is ambiguous. Under this reasoning, the policy’s definition of those who are entitled to underinsured motorist coverage is also automatically ambiguous. The plaintiff argues that, because an ambiguity in an insurance policy should be construed in favor of the insured, she, as a listed driver, is entitled to the policy’s coverage even though the policy does not list her as a covered person. We disagree.

The policy provides underinsured motorist coverage for a “Covered person.” The policy defines “Covered person” as: “1. You or any family member, 2. Any other person occupying your covered auto-, or 3. Any person for damages that person is entitled to recover because of bodily injury to which this coverage applies sustained by a person described in 1. or 2. above.” (Emphasis in original.) The term “you” is defined in the definitions section as “[t]he ‘Named Insured’ shown in the Declarations . . . .”

The plaintiffs position is that the definition of “Named insured” was, in context, ambiguous. She relies on having been listed under the rubric “DRIVER INFORMATION” and the absence of any policy provision defining the rights of a listed driver. Such ambiguity, according to the plaintiff, requires a construction of the policy in her favor because a reasonable layperson would expect to be covered under the entire policy if his or her name were listed in the policy as a driver. Under that reasoning, the plaintiff is entitled to all the coverages under the policy, including coverage under the underinsured motorist portion of the policy.

The defendant argues, to the contrary, that the court properly concluded that there is no ambiguity in the language of the policy with respect to underinsured motorist coverage. It asserts that the listing of a person as an additional driver does not suffice to establish ambiguity about the coverage to which such a person is entitled. According to the defendant, reading the language of the policy as a whole demonstrates that the policy is clear and unambiguous. The defendant urges us, therefore, to affirm the judgment.

In Connecticut, it is well settled that, “[wjhere the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms.” (Citation omitted; internal quotation marks omitted.) HLO Land Ownership Associates Ltd. Partnership v. Hartford, 248 Conn. 350, 357, 727 A.2d 1260 (1999). “As with contracts generally, a provision in an insurance policy is ambiguous when it is reasonably susceptible to more than one reading.” (Internal quotation marks omitted.) Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., 255 Conn. 295, 305, 765 A.2d 891 (2001). There are no Connecticut precedents applying these principles under the circumstances of this case.

After a searching review of the record, the parties’ briefs, the cases cited therein and the oral argument, we are persuaded that, although the plaintiffs arguments are not implausible, the defendant’s reading of the policy is more convincing. The declarations page in this case, even though it lists the plaintiff as an additional driver without defining the rights attaching to that designation, does not, per se, create an ambiguity in the policy’s definition of a “Covered person” for a particular coverage. In our view, the policy is not reasonably susceptible to more than one reading with regard to a listed driver’s right to underinsured motorist coverage.

For underinsured motorist coverage, the policy clearly and unambiguously defines “you,” the person covered in the underinsured portion of the policy, as the “ ‘Named insured’ shown in the Declarations . . . .” Because these terms are unambiguous, the coverage provisions as a whole are unambiguous.

On the present record, the only person who fits the definition of the “Named Insured” is the plaintiffs father-in-law. He is the only person who is identified as the insured on the declarations page. That identification is not on the same page as the listing of named drivers. He alone requested the policy change that made her an additional driver.

Despite the policy’s textual clarity in defining under-insured motorist coverage, the plaintiff maintains that case law in other jurisdictions should persuade us to find an ambiguity in the policy. She does not claim a right to recover if the policy is unambiguous. Concededly, there is no dispositive Connecticut law that governs the outcome of this case. In each of the cases cited by the plaintiff, as in our case, the person seeking coverage was listed as a driver on the declarations page, but was not otherwise a named insured.

The principal case 1'or the plaintiff is Lehrhoff v. Aetna Casualty & Surety Co., 271 N.J. Super. 340, 638 A.2d 889 (App. Div. 1994), in which the Appellate Division of the New Jersey Superior Court permitted the listed driver to recover in order to protect an insured’s reasonable expectations of coverage. It concluded that a typical policyholder would “understand and expect from the declarations page of [the] policy that each of the listed drivers was entitled to all of the coverages and all of the protections afforded by the policy.” Id., 348. Because of the court’s reliance on the principle of protecting the reasonable expectations of an insured, the court did not undertake a close examination of the language of the policy. Id., 350; Progressive Casualty Ins. Co. v. Hurley, 166 N.J. 260, 277, 765 A.2d 195 (2001).

The three other cases cited by the plaintiff have adopted or followed the reasoning of Lehrhoff. In Mallane v. Holyoke Mutual Ins. Co. in Salem, 658 A.2d 18 (R.I. 1995), the Rhode Island Supreme Court found ambiguity in the policy there at issue because “the listing of drivers’ names on the declarations page, without more, gives rise to an ambiguity in respect to whether such drivers are in fact covered under the terms of the policy.” Id., 20. The court noted that the term “driver” was not defined anywhere in the policy. Id. In Raines v. True, 2000 WL 266682 (Ky. App. 2000), the Kentucky Court of Appeals, relying on Lehrhoff, found a policy provision to be ambiguous. It held the reasonable expectations doctrine to be applicable because the policy (1) contained no definition of driver, (2) did not explain why drivers were listed on the declarations page and (3) did not provide any explanation of the responsibilities of listed drivers. In Roelle v. Coffman, 1997 WL 722775 (Ohio. App. 1997), the Ohio Court of Appeals likewise found ambiguity in a policy that did not define the term “named driver” and failed to assign coverage limits for such a driver in the body of the policy.

The defendant, noting that other out-of-state cases are to the contrary, argues that we should not follow the reasoning of Lehrhoff and its progeny. It reminds us that, under Connecticut law, unless a contract is found to be ambiguous, courts do not consider the reasonable expectations of a party to the contract. Pacific Indemnity Ins. Co. v. Aetna Casualty & Surety Co., supra, 240 Conn. 29-30.

Further, the defendant observes that the policy espoused by Lehrhoff has not received universal approval. It cites a case in another jurisdiction that held that a policy’s listing of a person as an additional driver on the policy does not create ambiguity with respect to the coverage afforded to a “listed driver.” In Nationwide Mutual Ins. Co. v. Williams, 123 N.C. App. 103, 472 S.E.2d 220 (1996), the North Carolina Court of Appeals affirmed the trial court’s denial of coverage because, in its view, such a listing did not create an ambiguity about the meaning of otherwise authoritative language describing who was a “named insured.” Id., 106-107. In addition, in Millspaugh v. Ross, 645 N.E.2d 14 (Ind. App. 1994), the Indiana Court of Appeals concluded that the terms in a policy describing those entitled to underinsured motorist coverage were clear and unambiguous. The court held that the fact that the claimant was “listed as the principal driver . . . [did] not transform him into a person qualified for compensation under the uninsured motorist provision of the policy.” Id., 16-17.

In light of these considerations, we agree with the defendant’s construction of the policy that it issued to the plaintiffs father-in-law. Specifically, we conclude that a person who is a listed driver on the declarations page of an automobile insurance policy, and who is nowhere else listed as an insured, is not entitled to underinsured motorist coverage. The policy’s definition of who is an insured for such coverage is unambiguous. Under the circumstances of this case, the plaintiff cannot require the defendant to compensate her for the injuries that she received as a result of the tortious conduct of an underinsured motorist.

The judgment is affirmed.

In this opinion the other judges concurred.

       The other original plaintiff in this action is Anna Panagiotides, the mother of Pelagia Kitmirides, who was also injured by the uninsured motorist. Arma Panagiotides was residing indefinitely with her daughter at the time of the accident. She claims that she is entitled to coverage because she was a resident relative of her daughter, a named insured. Because Anna Panagiotides’ claim is contingent on whether Pelagia Kitmirides was a named insured, for the sake of convenience we refer in this opinion to Pelagia Kitmirides as the plaintiff. The other plaintiffs are Efstathios Kitmirides and Nikolaos Kitmirides, whose motion to intervene was granted by the court. Pelagia Kitmirides, Anna Panagiotides and Nikolaos Kitmirides filed the present appeal, but they raise no claim concerning Nikolaos Kitmirides.

       It is undisputed that the motorist’s liability insurance coverage did not fully compensate the plaintiff for her injuries.

       See footnote 1.

       We refer to “underinsured” motorist coverage without intending a distinction between such coverage and “uninsured” motorist coverage.

       In Harvey v. Travelers Indemnity Co., 188 Conn. 245, 449 A.2d 157 (1982), our Supreme Court concluded that “[a]n insured’s status at the time of the injury, whether passenger, pedestrian, or driver of an insured or uninsured vehicle, is irrelevant to recovery” as an underinsured motorist. Id., 250. The predicate to coverage is, nonetheless, that the person injured is an insured under the relevant automobile policy.

       Family member is defined in relevant part as “a person related to you by blood, marriage or adoption who is a resident of your household. . . .” (Emphasis added.)

       The plaintiff also argues that a listing of additional drivers would be superfluous if the listed driver had no right to invoice all the coverages under the policy. This argument overlooks the liability coverage that the policy afforded to her father-in-law. That coverage presumably looks to the listing as dispositive evidence that the covered vehicle was used with permission.

       This case involves liability coverage, not undermsured motorist coverage.

       In United States Fidelity & Guaranty Co. v. Williams, 375 So. 2d 328 (Fla. App. 1979), cert, denied, 386 So. 2d 642 (Fla. 1980), although the District Court of Appeal of Florida did not discuss the ambiguity issue, the facts of that case are similar to those of the present case. The court held that although the “appellee’s decedent was noted on the policy as the sole operator of the insured vehicle, this did not make her a ‘named insured’ for purposes of uninsured motorist coverage under the terms of the policy . . . .” Id., 329.


author: DUPONT, J.

text:
    KAILA MARSHALL v. HARTFORD HOSPITAL ET AL.
    (AC 20345)
    Foti, Spear and Dupont, Js.
    Argued May 1
    officially released September 25, 2001

      William J. Sweeney, Jr., with whom, on the brief, was Katarzyna Maluszewski, for the appellant (plaintiff).

      Donna R. Zito, with whom, on the brief, was Stephen V. Manning, for the appellees (defendants).
   Opinion

DUPONT, J.

The primary issues in this medical malpractice action brought by a mother on behalf of her minor child are whether there was a unity of interest between the two defendants, Victor C. Herson, a physician (defendant physician), and Hartford Hospital (defendant hospital), for purposes of determining the number of peremptory challenges in the selection of a jury, and whether the trial court properly directed a verdict for the defendant physician and refused to set aside a jury verdict for the defendant hospital. We affirm the judgment of the trial court.

The plaintiff, Kaila Marshall, was bom prematurely at Hartford Hospital. Six days after birth, she developed complications from the insertion of an intravenous catheter that resulted in the loss of her fingers on one hand. The plaintiff alleged that the defendant hospital and the defendant physician, who was the attending neonatologist in the defendant hospital’s neonatal intensive care unit, were negligent in diagnosing and treating the complications. At the conclusion of the plaintiffs case, the court directed a verdict in favor of the defendant physician. At the conclusion of the entire case, the jury returned a verdict in favor of the defendant hospital, which the court refused to set aside.

In the first count against the defendant hospital, the plaintiff alleged that the negligence and carelessness of the defendant hospital through its agents, servants or employees, or all of them, who were acting within the scope of their agency, service or employment, caused her injuries, because, after discerning that the IV insertion had blocked the flow of blood to her hand, they failed to prevent necrosis and committed acts that promoted it. That allegation fails to identify a specific employee, servant or agent. The complaint also alleged that specific employees, not including the defendant physician, were negligent and careless because they (1) applied warm soaks to the plaintiff’s wrist and hand, which promoted necrosis, and (2) failed to call a physician immediately. The complaint further alleged that the defendant physician, as an agent, servant or employee, was negligent in that he neglected to attend to the plaintiff in a timely fashion, thereby losing or decreasing the chance for successful treatment. The other allegations as to the defendant hospital do not name specific employees, agents or servants, but allege failure to treat the plaintiff in a timely fashion, lack of a sufficiently trained or experienced staff to deal with the plaintiffs condition, and failure to train its staff properly for the diagnosis and treatment of arterial insufficiency.

The plaintiffs second count was against the defendant physician in his individual capacity and described him as an attending physician in the neonatal unit of the defendant hospital. The defendant physician allegedly did not exercise the degree of skill or care ordinarily exercised by physicians in that (1) he failed to attend to the plaintiff in a timely fashion, thereby losing or minimizing the chance for successful treatment, and (2) he neglected to obtain consultations from other physicians with more experience in dealing with the plaintiffs condition so as to lose or decrease the chance for successful treatment.

The plaintiffs complaint as outlined was the amended complaint dated June 16, 1999, and was in effect at the time the trial began. It is, therefore, the complaint governing our discussion of the directed verdict for the defendant physician and the court’s refusal to set aside the verdict for the defendant hospital. A prior complaint, dated January 6, 1998, in effect at the time the court ruled on the number of peremptory challenges for the parties, governs that issue.

Certain facts are not disputed. The plaintiff weighed slightly more than one pound at birth and was experiencing poor blood flow to her right hand. The unit nurses used various treatments to alleviate the condition, but her condition did not improve. Some four hours after the condition was first noticed, the defendant physician arrived for his regular shift and ordered the application of nitroglycerin paste to the plaintiffs hand, which order was not carried out until three hours later. The defendant physician consulted other physicians later that same day as to other possibilities. No other treatment, however, was used, gangrene developed and the plaintiffs right-hand fingers autoamputated.

I

The court, Wollenberg, J., presided over jury selection. That court ruled on June 8, 1999, that no unity of interest between the defendant physician and the defendant hospital existed and, consequently, allowed each defendant four peremptory challenges.

The court, Graham, J., presiding, reviewed the record and consulted with counsel in connection with the plaintiffs motion for rectification and articulation regarding peremptory challenges. Judge Graham found that nine jurors were chosen after Judge Wollenberg’s ruling, that the plaintiff had four peremptory challenges at the start of jury selection, that the defendants together had eight peremptory challenges, that the plaintiff had used all four of her challenges prior to the selection of the ninth juror, that two jurors were excused after the selection of the ninth juror prior to trial, that the court gave the plaintiff and the defendants each one extra challenge, that the plaintiff used that extra challenge prior to the selection of two additional jurors, and that in total, the defendants had nine challenges and the plaintiff five challenges.

Judge Graham reviewed Judge Wollenberg’s ruling as to the number of peremptory challenges allowed the parties, and also concluded that the defendant physician and the defendant hospital did not have a unity of interest. Judge Graham noted that the allegations against the defendant hospital were based on claims of commission and omission by the nurses as well as the defendant physician. Count two contained allegations against the defendant physician and were based on his own claimed acts and omissions. The court further noted that the time frame for the nurses’ alleged negligence preceded the defendant physician’s alleged negligence, and that the basis of the defendant hospital’s liability differed from the basis of the defendant physician’s liability and could differ as to the outcome of the liability question. Judge Graham, therefore, concluded that there was no unity of interest between the defendant physician and the defendant hospital, and that the ruling as to peremptory challenges was not a basis for setting aside the directed verdict in favor of the defendant physician or the jury verdict in favor of the defendant hospital. We agree with the trial court.

The plaintiff argues that the court improperly restricted her to four peremptory challenges while allowing the defendants eight challenges, which ruling affected the outcome of the trial. The plaintiff reasons that if the court had limited the defendants to four peremptory challenges, a wholly different jury panel would have been selected and that, because a party can never reconstruct the use of challenges, a new trial is needed. The plaintiff claims that a unity of interest exists because the defendant physician is an employee of the defendant hospital, thereby making the defendant hospital liable for his negligent acts, and because the defendant physician and the defendant hospital do not have an adverse relationship. The plaintiff admits that the question involves the trial court’s discretion. See Walsh v. Stonington Water Pollution Control Authority, 250 Conn. 443, 465, 736 A.2d 811 (1999); Rivera v. St. Francis Hospital & Medical Center, 55 Conn. App. 460, 463, 738 A.2d 1151 (1999).

If the plaintiff is correct, a new trial would be necessary; Krause v. Almor Homes, Inc., 147 Conn. 333, 336, 160 A.2d 753 (1960); Rivera v. St. Francis Hospital & Medical Center, supra, 55 Conn. App. 464; and the issues raised in her other claims would not be reached.

A review of Connecticut cases on the subject of peremptory challenges is instructive. Those cases arising before 1993, when the legislature amended the statute concerning peremptory challenges by adding and then defining the words “unity of interest”; see footnote 4; hold that the words “each party,” as used in General Statutes (1930 Rev.) § 5577, the forerunner of General Statutes § 51-241, mean every plaintiff and every defendant is entitled to his, her or its own peremptory challenges. Mourison v. Hansen, 128 Conn. 62, 67, 20 A. 2d 84 (1941); Commercial Union Ins. Co. v. Frank Perrotti & Sons, Inc., 20 Conn. App. 253, 262, 566 A.2d 431 (1989). This is so despite the recognition in at least one Connecticut case that other states have interpreted statutes containing similar language to mean that all parties who are on one side of an action must share the statutory number of peremptory challenges unless their interests are diverse or antagonistic. Mourison v. Hansen, supra, 67.

Prior to 1993, a father who owned a car and a son who drove that car, in an action arising out of the negligence of the driver, were entitled to two sets of peremptory challenges because each was a party to the action, although their interests were not antagonistic. Id., 67-68. Other cases decided prior to 1993 are similar in result. Both of the plaintiffs, an insurance company seeking reimbursement for sums paid to its insured and the intervening insured party, are each entitled to the statutory number of challenges; Commercial Union Ins. Co. v. Frank Perrotti & Sons, Inc., supra, 20 Conn. App. 262; as is true of a plaintiff employee and his employer who had made payments on the employee’s behalf under the Workers’ Compensation Act, General Statutes § 31-275 et seq.; Reid v. New Haven, 133 Conn. 446, 448-49, 52 A.2d 140 (1947); and true for a minor child and his mother who sought reimbursement for moneys paid for the medical and hospital expenses of her son. Krause v. Almor Homes, Inc., supra, 147 Conn. 335-36.

In Reid and Krause, the rationale for allowing each plaintiff the statutory number of peremptory challenges was that each plaintiff had the right to bring a separate action. A similar result was reached in Batick v. Seymour, 186 Conn. 632, 443 A.2d 471 (1982), a pre-1993 case. In Batick, the plaintiff brought a two count complaint for personal injuries against a defendant husband and for the fraudulent conveyance by the defendant husband to his defendant wife. The court reasoned that because the same jury would be used for the trial of the two counts, it was proper to allow both defendants to have four peremptory challenges each during jury selection, even though the defendant wife’s trial would not take place unless the defendant husband had been held liable on the first count. Id., 642.

Until 1993, Connecticut appellate courts liberally interpreted the statute governing peremptory chailenges. In all of the civil cases of which we axe aware, each party, whether plaintiff or defendant, regardless of whether the interests were substantially similar, was entitled to four peremptory challenges if alternate jurors were chosen.

The question now becomes whether the amendment to § 51-241 in Public Acts 1993, No. 93-176, § 1, restricted in any way the previous liberality espoused in the cited cases. If the multiple parties do not have a unity of interest because their interests are substantially dissimilar, the court must treat them individually for purposes of the number of peremptory challenges they receive. General Statutes § 51-241. To that extent, the amendment to the statute has changed nothing. If, however, there is a unity of interest, as found within the discretion of the trial court, the question is whether the court’s discretion extends to allowing those with a unity of interest more than four challenges.

The legislative history supports a conclusion that the amendment was intended to cure unfairness in the composition of a jury that might occur where one party with only four challenges is the lone plaintiff or defendant and is faced with multiple adversarial parties with four challenges each. See J. Steigelfest, “The Unity of Interest Rule and Peremptory Challenges in Connecticut,” 69 Conn. B.J. 353 (1995). The legislative history contains statements that provide examples of unity of interest situations, such as principal and agent, automobile owner and operator, employer and employee acting within the scope of his or her employment or plaintiffs all injured in the same automobile accident. The remarks in the legislature indicate that in a medical malpractice action against a hospital and its physicians, unity of interest may be lacking despite the existence of an employee-employer relationship. 36 H.R. Proc., Pt. 16, 1993 Sess., pp. 5558-62. Thus, some of the pre1993 cases that come within the examples as cited in the legislative history would now require a conclusion that there was a unity of interest. Although that is so, the question would then be whether, in spite of a conclusion that there is a unity of interest, the court could exercise its discretion and grant parties with that unity their own peremptory challenges.

A recent Supreme Court case addresses that question. See Walsh v. Stonington Water Pollution Control Authority, supra, 250 Conn. 443. In Walsh, the plaintiffs were two married couples who brought an action against the town of Stonington and its water pollution control authority. The plaintiffs were allowed sixteen peremptory challenges to the town’s four challenges. Walsh analyzes § 51-241 and concludes that “[t]he decision of whether several plaintiffs or defendants will be considered a single party for the purpose of making challenges is, therefore, within the discretion of the trial court.” Id., 465. Walsh states that if the court decides there is a unity of interest, the court may, in its discretion, determine whether that unity will trigger a limit on the number of peremptory challenges to be granted. Id., 465-66. In other words, even if there is unity of interest, which would allow a trial court to treat two or more defendants or plaintiffs as one for purposes of peremptory challenges, the court may nevertheless allow each defendant or plaintiff to have the statutory number of challenges.

Beach v. Regional School District Number 13, 42 Conn. App. 542, 682 A.2d 118, cert, denied, 239 Conn. 939, 684 A.2d 710 .(1996); Glass v. Peter Mitchell Construction Leasing & Development Corp., 50 Conn. App. 539, 718 A.2d 79, cert, granted, 247 Conn. 938, 723 A.2d 317 (1998) (appeal withdrawn July 6,1999); and Rivera v. St. Francis Hospital & Medical Center, supra, 55 Conn. App. 464, all decided after the 1993 amendment, contain the same principles as those expounded in Walsh. In Beach, which Walsh cites approvingly, there was a one count complaint, identical allegations of negligence against all three defendants, one counsel for all three defendants, identical answers and special defenses, the same insurance carrier and the same indemnification agreement for all three defendants. On the basis of those facts, but recognizing that each defendant had a different duty, the court concluded that a jury could determine that each party was negligent but in a distinct manner and, therefore, there was no unity of interest. Beach v. Regional School District Number 13, supra, 551. In Glass, which Walsh also cites approvingly, this court determined that there was no unity of interest among five defendants because they were sufficiently antagonistic, a jury could find that each was negligent in a separate and distinct manner, and that the duties of each were different. Glass v. Peter Mitchell Construction Leasing & Development Corp., supra, 546-47. Rivera, the last case in this trilogy, involved a plaintiff who brought an action against a hospital and two physicians. There was no unity of interest, although the physicians were employed by the hospital and they had the same attorney. The lack of unity of interest arose out of the facts that there was no surgical procedure in which both physicians were involved, the claims against the defendants were not identical, and it was possible for the plaintiff to prove one specification of negligence that proximately caused his injury as to one physician, but not the other or not the hospital. Rivera v. St. Francis Hospital & Medical Center, supra, 466.

On the basis of the cases cited, we conclude that § 51-241 allows the court to give each party, bound by a unity of interest with another party, individual peremptories or not, as the court, in its discretion, sees fit. The 1993 amendment establishes, consistent with case law then existing, that those who have no unity of interest must receive the allowable number of individual, statutory peremptory challenges. The amendment has only changed the law in that the court need not, in every case, give every party having a unity of interest a statutory number of challenges. We are aware of no Connecticut case, pre-1993 or post-1993, that has concluded that a court acted improperly by granting a party peremptory challenges; see Walsh v. Stonington Water Pollution Control Authority, supra, 250 Conn. 466; Batick v. Seymour, supra, 186 Conn. 642; Reid v. New Haven, supra, 133 Conn. 449; Mourison v. Hansen, supra, 128 Conn. 67; Beach v. Regional School District Number 13, supra, 42 Conn. App. 552; but are cognizant of cases that have concluded that the failure to give a party peremptory challenges was improper. Krause v. Almor Homes, Inc., supra, 147 Conn. 336; Rivera v. St. Francis Hospital & Medical Center, supra, 55 Conn. App. 466; Glass v. Peter Mitchell Construction Leasing & Development Center, supra, 50 Conn. App. 547; Commercial Union Ins. Co. v. Frank Perrotti & Sons, Inc., supra, 20 Conn. App. 263.

Our case law, therefore, remains liberal in its interpretation of General Statutes § 51-241 and General Statutes § 51-243 as to the granting of peremptory challenges. In doing so, the cases impliedly are mindful of the constitution of Connecticut, article first, § 19, as amended by article four of the amendments, which provides in relevant part: “In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law.” Reversible error rarely occurs by allowing a party more peremptory challenges than are provided by law. See State v. Hancich, 200 Conn. 615, 626, 513 A.2d 638 (1986).

The primary test to determine the existence of a unity of interest is whether there are separate issues of liability as to the two entities or persons. If the liability bases differ, there is no unity of interest. See Beach v. Regional School District Number 13, supra, 42 Conn. App. 550-51. Here, the question is whether the defendant physician’s alleged negligence and the defendant hospital’s alleged negligence differ in that the liability of each is separate and distinct from the liability of the other.

The nurses’ negligence on which the defendant hospital’s negligence was allegedly founded consisted of their application of warm soaks to the plaintiffs hand and their failure to call for a physician’s assistance immediately. The defendant physician’s negligence on which the defendant hospital’s negligence was founded consisted of his failure to attend to the plaintiff until eight hours after being notified of the problem. The plaintiff also alleged that the defendant hospital was negligent in that unnamed employees had failed to prevent necrosis and had promoted it, that there was a failure to treat timely, alack of sufficiently trained or experienced staff and a failure to train its staff properly.

The separate count, involving only the defendant physician, alleged that he did not exercise the degree of skill or care ordinarily exercised by physicians because he did not attend to the child until approximately eight hours after being notified of her condition, and he did not obtain consultations with other physicians.

Any negligence of the defendant hospital’s employees, the nurses, arising from their actions or their inactions occurred before the defendant physician arrived on the scene. The defendant physician, on the facts as alleged, was not involved in the nurses’ negligence, and the nurses were not involved in the defendant physician’s negligence. Thus, a jury could find the defendant hospital liable for the acts of its staff and nurses, excluding the defendant physician, which finding would constitute a different basis for liability. Moreover, a hospital may face direct liability for failure to adopt rules or protocols or failure to train its staff or physician employees. The plaintiff could have brought the action against the defendant physician without naming the defendant hospital as an additional defendant.

Although the defendant physician is an employee of the defendant hospital, he and it have a potentially adverse relationship. The second count against the defendant physician asserts an independent liability, whereas the first count alleges the defendant hospital’s liability for the acts of its employees, agents or servants, including the defendant physician. The defendant physician’s interest in escaping liability on count two could be adverse to the defendant hospital’s liability on count one since he might argue and present evidence that the negligence of other employees, and not his own, proximately caused the plaintiffs injuries. A juiy could thus simultaneously find the defendant hospital liable because others or another of its employees were negligent, which negligence proximately caused the plaintiffs injuries, and the defendant physician not liable because nothing that he did or failed to do proximately caused the plaintiffs injuries. The court correctly discerned that the claims against the two defendants were distinct, that is, substantially dissimilar. It should also be noted that even if the court found a unity of interest, it could, in its own discretion, give each defendant four peremptory challenges. See Walsh v. Stonington Water Pollution Control Authority, supra, 250 Conn. 465-66. We hold that the trial court did not abuse its discretion in allowing the defendant physician and defendant hospital each to have four peremptory challenges because they lacked a unity of interest.

II

The plaintiff next claims that the court improperly directed a verdict in favor of the defendant physician on the ground that the testimony of the plaintiffs expert failed to establish that the defendant physician’s negligence proximately caused the plaintiffs injuries. We disagree.

We begin with a brief discussion of the well settled principles applicable to directed verdicts and proximate cause. “A court should direct a verdict if, on the evidence, the jury reasonably and legally could not have reached any other conclusion. ... A directed verdict is justified if the plaintiff fails to present any evidence as to a necessary element of his or her cause of action.” (Citation omitted.) Poulin v. Yasner, 64 Conn. App. 730, 734-35, 781 A.2d 422, cert, denied, 258 Conn. 911, 782 A.2d 1245 (2001).

The plaintiff and the defendant physician disagree as to whether the plaintiffs expert, Ronald Poland, a physician with a background in pediatrics and neonatology, established that the defendant physician had breached the standard of care owed to the plaintiff and whether Poland established that such breach proximately caused the plaintiffs injuries. The court allowed Poland to testify, agreeing that he qualified as an expert. The court found that Poland did not testify that the defendant physician had violated the standard of care owed to the plaintiff or that either of the alleged acts of negligence, failure to attend to the plaintiff in a timely manner or failure to consult with others, was causally connected to the decreased chance for successful treatment or to the loss of the plaintiffs fingers.

The court stated during the hearing on the defendant physician’s motion for a directed verdict that the plaintiff did not elicit Poland’s opinion as to whether the defendant physician had violated the standard of care or an opinion as to whether a causal connection between the lost chance claim and the injury existed. The court concluded that unequivocal expert medical testimony was required as to both the alleged breach of the standard of care and the causal connection between that alleged breach and the injury because the level of sophistication needed to understand that connection was beyond the ordinary knowledge of a jury.

“All medical malpractice claims, whether involving acts or inactions of a defendant physician, require that a defendant physician’s conduct proximately cause the plaintiffs injuries. The question is whether the conduct of the defendant was a substantial factor in causing the plaintiffs injury. Expert medical opinion evidence is usually required to show the cause of an injury or disease because the medical effect on the human system of the infliction of injuries is generally not within the sphere of the common knowledge of the lay person.” (Internal quotation marks omitted.) Id., 738.

The medical malpractice claim in this case is a “lost chance” or “loss of chance” claim because the complaint alleges a failure to treat promptly or to obtain consultations from other physicians, thereby “losfing] or minimiz[ing] the chances for successful treatment.” In such cases, a plaintiff proves his or her entitlement to recovery if he or she provides evidence to allow a jury to conclude that, more probably than not, the defendant was negligent and that negligence proximately caused the plaintiffs injury.

In this case, no exceptions exist to excuse the plaintiff from producing expert medical testimony to prove her case. The alleged negligence was not gross, the medical condition was not obvious, and the injury and the defendant physician’s connection with the injury was not obvious enough to allow a lay juror to form a reasonable belief as to the negligence of the defendant physician. See Shegog v. Zabrecky, 36 Conn. App. 737, 746-47, 654 A.2d 771, cert, denied, 232 Conn. 922, 656 A.2d 670 (1995).

Poland had a residency in pediatrics and a fellowship in neonatal-perinatal medicine. Neonatology is the branch of medicine dealing with disorders of newborn infants, and perinatal medicine refers to medicine around the time of birth. Although the court properly accepted Poland as an expert witness, a thorough review of the transcript does not reveal that he clearly testified that the defendant physician had breached a standard of care owed to the plaintiff or that any action or inaction by him caused the plaintiffs injury. We, therefore, affirm the judgment for the defendant physician that followed the directed verdict in his favor.

Ill

The plaintiff next claims that the court should have granted her motion to set aside the jury verdict for the defendant hospital primarily because the court improperly allowed three physicians to testify as expert witnesses for the defendant. The plaintiff challenges the qualifications of John Grossman, a specialist in pediatric surgery, Steven Ruby, a professor of surgery at the University of Connecticut School of Medicine with subspecialty training in vascular surgery, and William Hellenbrand, a professor of pediatrics at Yale University School of Medicine who is board certified in both pediatrics and pediatric cardiology. The three experts testified as to the standard of care the hospital staff should have given the plaintiff with regard to the warm soaks and the failure to call a physician in a timely fashion.. The plaintiff claims that the defendant hospital’s experts were not neonatologists and therefore lacked the statutorily mandated qualifications to testify as experts. The plaintiff also claims that the experts lacked sufficient training, expertise and knowledge from the practice or teaching in a related field of medicine to testily as to the standard of care in the field of neonate pediatrics.

The standard of review of the denial of a motion to set aside a verdict is whether the trial court clearly abused its discretion. Honan v. Dimyan, 52 Conn. App. 123, 129, 726 A.2d 613, cert, denied, 249 Conn. 909, 733 A.2d 227 (1999). Appellate courts are disinclined to disturb jury verdicts because the trial court, from its vantage, is better able to assess the entire trial and because we review the evidence in the light most favorable to sustaining that verdict. Gaudio v. Griffin Health Services Corp., 2d 197 (1999). We conclude that, given those standards, the court properly refused to set aside the verdict for the defendant hospital.

The defendant hospital’s experts who were challenged were two surgeons, Grossman and Ruby, and a pediatric cardiologist, Hellenbrand. Poland, the plaintiffs expert, had testified that the hospital employees had breached the standard of care owed to the plaintiff in applying warm soaks and failing to call a physician immediately upon noticing the plaintiffs condition. Poland further testified that pediatric cardiologists are specialists with considerable expertise in the management of catheter complications and that he would defer to a surgeon with regard to appropriate surgical treatment for an ischemic injury in a premature neonate. He also stated that in terms of medical treatment for the same type of injury, he would consult a surgeon.

Grossman was a surgeon with a specialty in pediatric surgery, with an emphasis on surgery of the hand, upper extremity and peripheral nerves. He had operated on neonates for problems related to vascular occlusion.

Ruby, the second challenged expert, is board certified in general surgery with subspecialty training and certification in vascular surgery. He testified that he had had substantial experience in treating vascular occlusions, that vascular surgery for a child and an adult involves the same principles and that he knew of no vascular surgeon in Connecticut who specialized in peripheral vascular surgery for neonates. The defendant hospital only offered Ruby’s testimony with regard to treatment options available when the ischemic complication was first noticed.

The plaintiff also argues that the defendant hospital’s third expert, Hellenbrand, was not qualified because he was not board certified in neonatology. Hellenbrand was a pediatric cardiologist, a specialty Poland agreed would have expertise in the management of catheters. Hellenbrand treated newborns frequently in the setting of neonatal intensive care units and had experience in the management of catheter complications.

General Statutes § 52-184c (d) provides: “Any health care provider may testify as an expert in any action if he: (1) Is a ‘similar health care provider’ pursuant to subsection (b) or (c) of this section; or (2) is not a similar health care provider pursuant to subsection (b) or (c) of this section but, to the satisfaction of the court, possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience or knowledge shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.”

We agree with the trial court that the defendant hospital’s experts were qualified to testify. Section 52-184c allows a health care provider trained and experienced in a medical specialty similar to that specialty in question to testify as an expert. The defendant hospital’s experts had such a specialty. Furthermore, §§ 7-2 and 7-4 (a) of the Connecticut Code of Evidence also provide a basis for the court’s acceptance of the testimony of the defendant hospital’s experts.

There are many Connecticut cases that adhere to the liberalization of evidentiary rules allowing expert medical testimony in a medical malpractice action when there is a similarity of practice. See, e.g., Pool v. Bell, 209 Conn. 536, 542-43, 551 A.2d 1254 (1989); Katsetos v. Nolan, 170 Conn. 637, 646-47, 368 A.2d 172 (1976); Fitzmaurice v. Flynn, 167 Conn. 609, 618, 356 A.2d 887 (1975); Marshall v. Yale Podiatry Group, 5 Conn. App. 5, 7-12, 496 A.2d 529 (1985). Medical specialties overlap, and it is within a court’s discretion to consider that fact in exercising its discretion to deem the witness qualified to testily. It is not the artificial classification of a witness by title that governs the admissibility of the testimony, but the scope of the witness’s knowledge of the particular condition.

On the basis of our review of the expert testimony offered by the defendant hospital’s three experts, we conclude that the court acted properly and did not abuse its discretion in not disturbing the jury verdict in favor of the defendant hospital. The evidence was sufficient for such a verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       Paragraph six of count one of the plaintiffs complaint alleged that during the course of a change in the IV feed in the plaintiffs right wrist “the IV insertion missed the proper vein . . . and obstructed the flow of blood to her right hand.” In the allegations of negligence contained in paragraph eight of that count, there is no contention that the use of the IV feed was inappropriate. The insertion of the catheter was, however, described as “improper.” Count one relates to the defendant hospital’s negligence.

       The plaintiff originally named a third defendant, a nurse in the neonatal unit of the defendant hospital, but withdrew the action as to the nurse before trial. Thus, the original complaint consisted of three counts — count one against the defendant hospital, count two against the defendant physician and count three against the nurse.

       Necrosis is the death of living tissue, especially when it is still in contact with the living parts around it.

       General Statutes § 51-241 provides: “On the trial of any civil action to a jury, each party may challenge peremptorily three jurors. Where the court determines a unity of interest exists, several plaintiffs or several defendants may be considered as a single party for the purpose of making challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly. For the purposes of this section, a ‘unity of interest’ means that the interests of the several plaintiffs or of the several defendants are substantially similar.”
      The last two sentences of the statute were added by amendment in Public Acts 1993, No. 93-176, § 1.
      General Statutes § 51-243 (a) provides in relevant part: “In any case when the court directs the selection of alternate jurors, each party may peremptorily challenge four jurors. Where the court determines a unity of interest exists, several plaintiffs or several defendants may be considered as a single party for the purpose of making challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly. For the purposes of this subsection, a ‘unity of interest’ means that the interests of the several plaintiffs or of the several defendants are substantially similar.”

       The complaint dated January 6,1998, in effect at the time Judge Wollenberg ruled, contained allegations of negligence in count one as to the defendant hospital as follows: “The staff nurse or nurses who discovered or first treated the [plaintiff] after the discovery of the improper insertion failed or neglected to call immediately a physician, but rather waited approximately three to four hours to do so, or until approximately 10 a.m. on December 27, 1995,” and “the attending physician . . . failed ... to attend to the [plaintiff] until . . . approximately eight hours after being notified of the problem.” It also contained an allegation in count two as to the defendant physician that “although he was called by the staff nurse(s) to attend to the [plaintiff] after discovery of the improper IV insertion, he failed or neglected to attend to the [plaintiff] until approximately 6 p.m. on December 27, 1995, or approximately eight hours after being notified of the problem.”

       If a new trial is not necessary because the court’s ruling as to the peremptory challenges issue was proper, but is necessary because both the directed verdict and the jury verdict are improper, the issue of peremptory challenges will likely recur, and so we discuss it. We recognize that if the plaintiff is correct as to only one of the latter two claims and a new trial is necessary as to only the defendant physician or only the defendant hospital, the issue of the number of peremptory challenges will be moot because the unity of interest issue will no longer exist.

       Prior to the amendment of General Statutes § 51-241 in P.A. 93-176, there was an ease of interpretation and administration, and a recognition that when peremptory challenges are exercised as a group, there might be a difference of opinion among the group as to which potential jurors should be summarily excused. Mourison v. Hansen, supra, 128 Conn. 67. A rule allowing each party to have its own challenges regardless of unity of interest simplified jury selection, but also could lengthen it considerably when there are multiple plaintiffs and defendants.

       The same hearing also involved the defendant hospital’s motion for a directed verdict, which the court denied on the ground that Poland had testified that the defendant hospital’s employees had breached a standard of care because they had applied warm soaks and failed to call a physician, and that those breaches were a substantial factor in the plaintiffs injuries.

       The question and answer of Poland relating to the proper standard of care was as follows:
      “Q. Now, do you have an opinion as to whether or not the [defendant physician] violated the proper standard of care in this instance?
      “A. He — he had less of a chance to make a difference, because he wasn’t involved until eight in the morning, which is now four hours after the event. And I said there was a six to eight hour window, which was probably shortened by the heat. And it wasn’t clear that he saw it as an emergency or was told that it was an emergency, even at eight o’clock, because things got around to some sort of treatment around nine.”

       At the hearing on the motion for directed verdict, the court reviewed Poland’s testimony and recapped that testimony as follows: “Doctor, based on reasonable medical probability, would a consult with other physicians have had a reasonably, medically, probably likelihood of being successful outside of that four to six or the six to eight hour window?
      “The answer is, ‘No.’”
      The court noted that although the expert stated that a consult within the time frame would have had no effect on the plaintiffs injury, he did not state that a consult within the time frame would have been successful in treating the plaintiff.

       An ischemic ii\juiy refers to an injury to an organ or tissue resulting from insufficient blood supply to the part, which may be attributable to an obstruction or constriction of the blood vessels.

       Connecticut Code of Evidence § 7-2 provides: “A witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue.”

       Connecticut Code of Evidence § 7-4 (a.) provides: “An expert may testify in the form of an opinion and give reasons therefor, provided sufficient, facts are shown as the foundation for the expert’s opinion.”