author: FOTI, J. BISHOP, J.,

text:
    MARGARET JACARUSO v. RICHARD F. LEBSKI
    (AC 30150)
    Bishop, Harper and Foti, Js.

      Argued September 2
    officially released December 1, 2009

      Harold L. Rosnick, for the appellant (plaintiff).

      Miles N. Esty, with whom, on the brief, was Robert N. Reed, for the appellee (defendant Nationwide Mutual Insurance Company).
   Opinion

FOTI, J.

This appeal arises from an action seeking recovery pursuant to the uninsured-underinsured motorist provisions of an automobile insurance policy (policy) issued by the defendant Nationwide Mutual Insurance Company to the plaintiff, Margaret Jacaruso. Jacaruso appeals from the judgment of the trial court granting the defendant’s motion for summary judgment and denying her cross motion for summary judgment. The court concluded that there were no genuine issues of material fact and that the defendant was entitled to judgment as a matter of law because under the clear and unambiguous language of the policy, there were no uninsured-underinsured motorist benefits available to Jacaruso under the circumstances. On appeal, Jacar-uso contends that the court improperly determined that the monetary limits of the uninsured-underinsured motorist coverage had been reduced by amounts paid to a third party under the same policy’s liability and umbrella coverage. We affirm the judgment of the trial court.

The following stipulated facts and procedural history are relevant to our resolution of Jacaruso’s appeal. On March 13, 2004, a vehicle operated by Richard F. Lebski collided with a vehicle operated by Jacaruso. Beatrice Picone was a passenger in Jacaruso’s vehicle. Both Picone and Jacaruso sustained physical injuries and other damages as a result of the accident. Both Picone and Jacaruso also filed legal actions against Lebski, each alleging that Lebski’s negligence caused their injuries. At the time of the collision, Lebski was insured under a liability policy with Geico. That policy had recovery limits for bodily injury of $50,000 per person and $100,000 per occurrence. Geico paid both Jacaruso and Picone $50,000 each and thereby exhausted the limits of Lebski’s insurance coverage.

In her legal action against Lebski, Picone also named Jacaruso in this appeal as a defendant. Picone alleged that Jacaruso’s negligence was the cause of Picone’s injuries. See Picone v. Lebski, Superior Court, judicial district of Fairfield, Docket No. CV-04-4001685-S (August 3,2005) (39 Conn. L. Rptr. 735). Jacaruso, at the time of the accident, was insured under an automobile liability policy issued by the defendant in this appeal. The defendant paid $400,000 to Picone to settle her claim against Jacaruso. That payment was made partially under the liability portion and partially under the umbrella insurance coverage of Jacaruso’s automobile insurance policy. Jacaruso then successfully filed a motion to implead the defendant in her action against Lebski, seeking to recover uninsured-underinsured benefits pursuant to her policy. That policy had uninsured-underinsured motorist coverage limits of $300,000.

The parties filed cross motions for summary judgment. On July 7, 2008, the court issued a memorandum of decision granting the defendant’s motion for summary judgment and denying Jacaruso’s cross motion. The court concluded that the defendant was not liable to Jacaruso for uninsured-underinsured motorist benefits because the $300,000 policy limit was reduced to zero by the $100,000 in combined payments Geico had made to Picone and Jacaruso, as well as the $400,000 the defendant had paid to Picone to settle her negligence claim against Jacaruso. The court further concluded that § 38a-334-6 (d) (1) (A) and (C) of the Regulations of Connecticut State Agencies allowed for such a reduction.

Subsequently, Jacaruso filed this appeal, claiming that the court improperly rendered summary judgment in favor of the defendant and denied her motion for summary judgment. Specifically, Jacaruso claims that the court improperly interpreted the language of the insurance policy and the requirements set forth in § 38a-334-6 (d) (1) (A) and (C) to allow for a reduction in uninsured-underinsured benefits.

We begin by setting forth the applicable standard of review. Practice Book § 17-49 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” The court was presented with cross motions for summary judgment that were based on stipulated facts. Therefore, our review is plenary, and we must determine whether the court’s conclusions of law are legally and logically correct and find support in the stipulated facts. See Doucette v. Pomes, 247 Conn. 442, 453, 724 A.2d 481 (1999). Moreover, “[interpretation of an insurance policy, like the interpretation of other written contracts, involves a determination of the intent of the parties as expressed by the language of the policy. . . . Unlike certain other contracts, however, where absent statutory warranty or definitive contract language the intent of the parties and thus the meaning of the contract is a factual question subject to limited appellate review . . . construction of a contract of insurance presents a question of law for the court which this court reviews de novo. . . . Moreover, we have concluded that an insurer may not, by contract, reduce its liability for such uninsured or underinsured motorist coverage except as § 38-175a-6 [now § 38a-334-6] of the Regulations of Connecticut State Agencies expressly authorizes.” (Internal quotation marks omitted.) Nichols v. Salem Subway Restaurant, 98 Conn. App. 837, 841-42, 912 A.2d 1037 (2006). The interpretation of a state regulation is an issue of law over which our review is plenary. See Executive Services, Inc. v. Karwowski, 80 Conn. App. 124, 126, 832 A.2d 1212 (2003), cert. denied, 268 Conn. 908, 845 A.2d 411 (2004). On appeal, we must determine whether the reduction in benefits at issue is authorized by the language of the policy and whether that language comports with Regulations of Connecticut State Agencies § 38a-334-6 (d) (1) (A) and (C).

Jacaruso first argues that the reduction in uninsuredunderinsured motorist benefits claimed by the defendant is not authorized by the policy. Our analysis begins with the provision of the policy that controls uninsuredunderinsured motorist benefits, which provides in relevant part: “The limits of this [uninsured-underinsured motorist] coverage and/or any amounts payable under this coverage, whichever are less, will be reduced by: [a] any amount paid by or for any liable parties.” It is axiomatic that an insurance policy may provide for a reduction in the policy’s stated limits to the extent that an insured has been compensated from other sources for damages sustained during a compensable accident. Savoie v. Prudential Property & Casualty Ins. Co., 84 Conn. App. 594, 600, 854 A.2d 786, cert. denied, 271 Conn. 932, 859 A.2d 930 (2004). “The limit of the insurer’s liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of section 14-112 of the general statutes, except that the policy may provide for the reduction of limits to the extent that damages have been (A) paid by or on behalf of any person responsible for the injury . . . (B) paid or are payable under any workers’ compensation law, or (C) paid under the policy in settlement of a liability claim.” (Emphasis added.) Regs., Conn. State Agencies § 38a-334-6 (d) (1).

Jacaruso contends that under the plain language of the policy, the defendant is not entitled to the reduction in uninsured-underinsured motorist coverage for the $400,000 payment to Picone because the policy omits an express provision that allows for moneys “paid under the policy in settlement of a liability claim.” Regs., Conn. State Agencies § 38a-334-6 (d) (1) (C). Furthermore, Jacaruso argues, because the policy provision tracks only the language of § 38a-334-6 (d) (1) (A) and omits any language tracking § 38a-334-6 (d) (1) (C), it is clearly intended to credit payments made outside of the subject policy by a tortfeasor to the insured and was not intended to credit the defendant for payments made by the defendant under the liability coverage of the policy to a third party. Jacaruso concludes that the defendant chose not to include in the policy language authorized by § 38a-334-6 (d) (1) (C) and, therefore, under a plain reading of the policy, no reduction for the $400,000 payment the defendant made to Picone is authorized. The defendant, on the other hand, argues that pursuant to the plain, unambiguous language of the policy, it is authorized to reduce the available uninsured-underin-sured motorist benefits for all payments to any injured party and not merely for payments to the insured.

We agree with the defendant that under the unambiguous terms of the policy and the uncontested facts of this case, it was entitled to reduce the uninsuredunderinsured motorist benefits available to Jacaruso by the amount the defendant paid on her behalf to Picone. The policy expressly states that uninsuredunderinsured motorist benefits can be reduced by “any amount paid by or for any liable parties.” There is no indication that this provision was intended to restrict payments applicable to a reduction in benefits to payments made by tortfeasors outside the policy or to exclude payments made by the defendant to Jacaruso. It is a fundamental principle of insurance policy interpretation that “the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous.” (Internal quotation marks omitted.) Stephan v. Pennsylvania General Ins. Co., 224 Conn. 758, 764, 621 A.2d 258 (1993). To give the provision the meaning suggested by Jacaruso would be an exercise in formal logic, resulting in this court essentially rewriting the policy. That we cannot do. See Nichols v. Salem Subway Restaurant, supra, 98 Conn. App. 843.

The relevant language in the policy is plain and unambiguous and, therefore, must be given its natural and ordinary meaning. See Savoie v. Prudential Property & Casualty Ins. Co., supra, 84 Conn. App. 601 (insurance policy provisions afforded their natural and ordinary meaning). The term “any amount paid by or for any liable parties” refers to payments made both from within the policy’s coverage itself as well as those made by other tortfeasors. Although this provision could have included an express reduction resulting from the amount “paid under the policy in settlement of a liability claim,” it need not because the absence of such language alone does not lead to the determination that the provision is ambiguous. The term “any,” used to modify both the amount and on whose behalf such payments were made, clearly includes even those amounts paid under the policy by the defendant in settlement of a liability claim. As a result, we conclude that the court properly interpreted the provision of the policy as providing for a reduction in uninsured-underinsured motorist benefits for any payments made in settlement of a liability claim. That conclusion, however, does not end our analysis, as we must now determine whether that deduction is authorized under § 38a-334-6 (d) (1) (A) and (C).

“[I]f the policy comports with the language of the regulation, it will be deemed to provide that same level of protection permitted by the regulation. ... In order for a policy exclusion to be expressly authorized by [a] statute [or regulation], there must be substantial congruence between the statutory [or regulatory] provision and the policy provision.” (Internal quotation marks omitted.) Nichols v. Salem Subway Restaurant, supra, 98 Conn. App. 844. As noted previously, the applicable regulation allows an insurer to limit its uninsured-underinsured motorist liability “to the extent that damages have been (A) paid by or on behalf of any person responsible for the injury . . . or . . . (C) paid under the policy in settlement of a liability claim.” Regs., Conn. State Agencies § 38a-334-6 (d) (1). Jacaruso essentially argues that because the policy provision that authorized reduction to the uninsured-underinsured motorist benefits tracks only the language of § 38a-334-6 (d) (1) (A) and omits any language tracking § 38a-334-6 (d) (1) (C), it cannot provide that same level of protection permitted by the regulation because there is no substantial congruence between that provision and the regulation. To determine otherwise, Jacaruso contends, this court would have to interpret § 38a-334-6 (d) (1) (A) to include payments made to third parties under the liability provisions of the subject policy thus rendering “void, superfluous, meaningless and insignificant” § 38a-334-6 (d) (1) (C), which would violate basic judicial tenets of statutory construction to which we are bound. See Vibert v. Board of Education, 260 Conn. 167, 171, 793 A.2d 1076 (2002) (“[w]hen construing a statute, we do not interpret some clauses in a manner that nullifies others, but rather read the statute as a whole and so as to reconcile all parts as far as possible” [internal quotation marks omitted]).

There is no requirement that the policy provision must be identical to the regulation for it to be expressly provided for by statute. The policy language allows for a reduction of uninsured-underinsured motorist benefits for “any amount paid by or for any hable parties.” The defendant’s payment to Picone was in settlement of a claim of negligence against Jacaruso, the defendant’s insured under the policy. We conclude that the policy provision is an attempt to combine the provisions of § 38a-334-6 (d) (1) (A) and (C) and that it does not materially alter the regulation. See Nichols v. Salem Subway Restaurant, supra, 98 Conn. App. 845. The change in language between the policy and § 38a-334-6 (d) (1) (C) merely reflects that attempt. This determination does not require this court to interpret § 38a-334-6 (d) (1) (A) in a way that renders § 38a-334-6 (d) (1) (C) void, superfluous, meaningless or insignificant because in determining that the provision and the regulations are substantially congruent, we necessarily conclude that § 38a-334-6 (d) (1) (C) and the terms of the provision correspond in all material respects. In other words, to determine that the provision and regulation are substantially congruent, we need not conclude that only § 38a-334-6 (d) (1) (A) is represented in the policy language. We can, and do, conclude that the policy provision reflects a combination of § 38a-334-6 (d) (1) (A) and (C), not merely one to the exclusion of the other. We conclude, therefore, that § 38a-334-6 (d) (1) (C) and the provision in the policy correspond in all material respects and that there is substantial congruence between the regulatory provisions and the policy provision. Consequently, because § 38a-334-6 (d) (1) (C) permits a reduction for benefits paid to settle a liability claim, the policy language must be deemed to provide the defendant with a legitimate reduction. See id.; Vitti v. Allstate Ins. Co., 245 Conn. 169, 174, 713 A.2d 1269 (1998); Roy v. Centennial Ins. Co., 171 Conn. 463, 466, 370 A.2d 1011 (1976).

The judgment is affirmed.

In this opinion HARPER, J., concurred.

BISHOP, J.,

dissenting. The issue in this appeal is whether the automobile insurance policy (policy) issued by the defendant Nationwide Mutual Insurance Company to the plaintiff, Margaret Jacaruso, provides for a reduction of the monetary limits of her uninsured-underinsured motorist coverage for amounts paid to a third party under the same policy’s liability coverage. Although such a reduction is permissible pursuant to § 38a-334-6 (d) (1) (C) of the Regulations of Connecticut State Agencies, I do not believe that the language of the policy issued by the defendant provides for such a reduction. Accordingly, I respectfully dissent.

As indicated in the majority opinion, Richard F. Lebski’s motor vehicle collided with the plaintiffs vehicle, causing both the plaintiff and her passenger, Beatrice Picone, to sustain physical injuries. Both the plaintiff and Picone filed legal actions against Lebski, who was insured by Geico at the time of the accident. Geico paid the plaintiff and Picone $50,000 each, thereby exhausting Lebski’s liability insurance coverage. Picone had also named the plaintiff as a defendant in her legal action. At the time of the accident, the plaintiff was insured by the defendant, who paid to Picone the sum of $400,000, $300,000 from the plaintiffs automobile liability policy and $100,000 from an umbrella policy.

The plaintiff also sought recovery under her uninsured-underinsured policy, which had a limit of $300,000. The court concluded that the defendant was not hable to the plaintiff for uninsured-underinsured motorist benefits on the basis of its reasoning that the $300,000 uninsured-underinsured policy limit was reduced to zero by the $100,000 in combined payments Geico had made to Picone and the plaintiff, as well as the $400,000 the defendant had paid to Picone to settle her negligence claim against the plaintiff. The court concluded that such reductions were allowable under § 38a-334-6 (d) (1) (A) and (C) of the Regulations of Connecticut State Agencies and that the language of the policy provides for those reductions.

On appeal, the plaintiff claims that the court improperly concluded that both subparagraphs (A) and (C) authorize a reduction in coverage by virtue of settlement payments made by the defendant under the liability section of the insured’s policy. The plaintiff also contends that the reduction in uninsured-underinsured motorist benefits claimed by the defendant, namely, that authorized by subparagraph (C), is not provided for in the policy. I agree with the plaintiff.

I begin my analysis with a review of the applicable statutory and regulatory scheme. Pursuant to General Statutes § 38a-336 (a), all automobile liability policies must provide a minimum level of uninsured motorist coverage for the protection of persons insured thereunder. Pursuant to § 38-336 (b), “[a]n insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured and underinsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured and underinsured motorist coverage, exceed the limits of the insured’s uninsured and underinsured motorist coverage. ...”

Our Supreme Court has explained that § 38a-336, formerly § 38-175c, “does not require that [under]insured motorist coverage be made available when the insured has been otherwise protected .... Nor does the statute provide that the [under] insured motorist coverage shall stand as an independent source of recovery for the insured, or that the coverage limits shall not be reduced under appropriate circumstances. The statute merely requires that a certain minimum level of protection be provided for those insured under automobile liability insurance policies; the insurance commissioner has been left with the task of defining those terms and conditions which will suffice to satisfy the requirement of protection.” (Internal quotation marks omitted.) Orkney v. Hanover Ins. Co., 248 Conn. 195, 205, 727 A.2d 700 (1999).

“The public policy established by the [uninsuredunderinsured] motorist statute is to ensure that an insured recovers damages he or she would have been able to recover if the uninsured [or underinsured] motorist had maintained a policy of liability insurance . . . and . . . the amount of overall benefits available to a plaintiff be equal to the amount of coverage available from a tortfeasor with an equivalent policy.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Garcia v. ITT Hartford Ins. Co., 72 Conn. App. 588, 594, 805 A.2d 779 (2002). In other words, underinsured motorist coverage provides protection for the risk that the damages sustained by insureds will not be adequately indemnified by the liability coverage carried by a negligent insured motorist. The remedial propose of underinsured motorist coverage is to protect and to make whole a person injured at the hands of an uninsured-underinsured motorist.

General Statutes § 38a-334 (a) directs the commissioner to “adopt regulations with respect to minimum provisions to be included in automobile liability insurance policies” and provides that “[s]uch regulations shall relate to the insuring agreements, exclusions, conditions and other terms applicable to the bodily injury liability, property damage liability, medical payments and uninsured motorists coverages . . . .”

“It is clear that one of the purposes of the regulatory reductions is to prevent a double recovery by the claimant. . . . The regulation goes further than just the prevention of double recovery [however] and extends to reduce an insurer’s coverage obligation with an expectation that this coverage reduction would have some effect in the form of reduced rates for such coverage.” (Citations omitted; internal quotation marks omitted.) J. Berk & M. Jainchill, Connecticut Law of Uninsured and Underinsured Motorist Coverage (3d Ed. 2004) § 6.1, p. 422.

“The regulations, however, must carry into effect the purpose and intent of the statute pursuant to which they are enacted. ... [A] limitation of liability on uninsured or underinsured motorist coverage must be construed most strongly against the insurer. . . . The regulatory language . . . must be read, therefore, in light of this principle as well as the language and intent of [§ 38a-336].” (Citations omitted.) American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 196-97, 530 A.2d 171 (1987).

In examining the regulations, our rules of statutory construction apply. See Vittii v. Allstate Ins. Co., 245 Conn. 169, 178, 713 A.2d 1269 (1998). “It is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions. . . . [I]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous. . . . Because [e]very word and phrase [of a statute] is presumed to have meaning ... [a statute] must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant.” (Internal quotation marks omitted.) PJM & Associates, LC v. Bridgeport, 292 Conn. 125, 138, 971 A. 2d 24 (2009). “Elementary rules of statutory construction require the presumption that the legislature [does] not intend to enact superfluous legislation. . . . Where . . . more than one [provision] is involved, we presume that the legislature intended them to be read together to create a harmonious body of law . . . and we construe the [provisions], if possible, to avoid conflict between them. (Citations omitted; internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 388, 698 A.2d 859 (1997). The interpretation of a state regulation is an issue of law over which our review is plenary. See Executive Services, Inc. v. Karwowski, 80 Conn. App. 124, 126, 832 A.2d 1212 (2003), cert. denied, 268 Conn. 908, 845 A.2d 411 (2004).

Section 38a-334-6 (d) (l) of the Regulations of Connecticut State Agencies authorizes an insurer to reduce coverage limits “to the extent that damages have been (A) paid by or on behalf of any person responsible for the injury ... or (C) paid under the policy in settlement of a liability claim.” I believe, respectfully, that the majority conflates these two provisions. It is clear that, by listing these two exceptions separately and in the disjunctive, the commissioner intended them to be two different possible reductions. To read subpara-graph (A) as including payments from the insured’s liability policy would render subparagraph (C) meaningless or superfluous. Thus, in examining the entire regulatory scheme regarding permissible reductions, it is evident that subparagraph (A) contemplates payments only from third party sources. See J. Berk & M. Jain-chill, supra, § 6.2.1.A, p. 436 n.22 (“Section 6 [d] [1] [A] of the insurance regulations applies generally to third-party liability payments. Section 6 [d] [1] [B] applies generally to first-party payments received from workers’ compensation. Section 6 [d] [1] [C] and 6 [d] [2] apply generally to payments made under the subject policy.”).

Turning to the policy issued by the defendant in this case, I note that “[t]he Connecticut rule of construction of insurance policies is well settled. If the terms of an insurance policy are of doubtful meaning, that permissible construction which is most favorable to the insured is to be adopted; but if they are plain and unambiguous the established rules for the construction of contracts apply, the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning, and the courts cannot indulge in a forced construction ignoring provisions or so distorting them as to accord a meaning other than that evidently intended by the parties.” (Internal quotation marks omitted.) Vitti v. Allstate Ins. Co., supra, 245 Conn. 176.

“[A]n insurer may not, by contract, reduce its liability for such uninsured or underinsured motorist coverage except as 38-175a-6 of the Regulations of Connecticut State Agencies expressly authorizes.” Allstate Ins. Co. v. Ferrante, 201 Conn. 478, 483, 518 A.2d 373 (1986). “If an insurer wishes to reduce its payment obligation as set forth in the regulations, it must provide for the reductions by the appropriate policy language.” J. Berk & M. Jainchill, supra, § 6.1, p. 421; Stephan v. Pennsylvania General Ins. Co., 224 Conn. 758, 763, 621 A.2d 258 (1993). “[I]f the policy comports with the language of the regulation, it will be deemed to provide that same level of protection permitted by the regulation. ... In order for a policy exclusion to be expressly authorized by [a] statute [or regulation], there must be substantial congruence between the statutory [or regulatory] provision and the policy provision.” (Internal quotation marks omitted.) Nichols v. Salem Subway Restaurant, 98 Conn. App. 837, 844, 912 A.2d 1037 (2006).

The provision of the policy at issue here provides in relevant part: “The limits of [the uninsured-underin-sured motorist] coverage and/or any amounts payable under this coverage, whichever are less, will be reduced by: [a] any amount paid by or for any liable parties.” The plaintiff asserts that the language of the policy essentially mirrors subparagraph (A) and does not implicate subparagraph (C). I agree. If the defendant had wanted to reduce coverage by the amount it paid out under the insured’s liability policy, it could have done so by expressly using policy language tracking subparagraph (C).

The defendant does not contend that both subparagraphs (A) and (C) permit a reduction for amounts paid under an insured’s liability policy. Rather, the defendant claims that the broad language of the policy constitutes a combination of the provisions of subparagraphs (A) and (C). In support of its argument, the defendant relies on Nichols v. Salem Subway Restaurant, supra, 98 Conn. App. 837, and Allstate Ins. Co. v. Lenda, 34 Conn. App. 444, 642 A.2d 22, cert. denied, 231 Conn. 906, 648 A.2d 149 (1994). Both cases, however, are distinguishable from the case at hand because the policies in both Nichols and Allstate Ins. Co. explicitly referred to a reduction that was based on payments made pursuant to an insured’s liability policy. In Nichols, the policy provided: “Any amount payable under this coverage shall be reduced by any amount . . . paid to or for the insured for bodily injury under the liability coverage . . . .” Nichols v. Salem Subway Restaurant, supra, 842. In Allstate Ins. Co., the policy provided that the limits of coverage “will be reduced by: (1) all amounts paid by the owner or operator of the uninsured auto or anyone else responsible. This includes all sums paid under the bodily injury liability coverage of this or any other policy.” (Internal quotation marks omitted.) Allstate Ins. Co. v. Lenda, supra, 452. I believe that both Nichols and Allstate Ins. Co. are consistent with the plaintiffs view because the policies involved in those cases expressly provided for reductions in uninsuredunderinsured coverage for payments made under the liability portions of the insureds’ policies. This factual difference between the Nichols and Allstate Ins. Co. policies and the policy at hand is pivotal.

Here, the uninsured-undersinsured portion of the policy is devoid of any mention of the liability provision of the insured’s policy. Because there is not a substantial congruence between the language of subparagraph (C) and the language of the policy, I cannot conclude that the policy offers the level of protection permitted by subparagraph (C). Thus, I would conclude that the policy does not provide for the reduction of the amount paid under the plaintiffs liability coverage. Accordingly, I would reverse the judgment and remand the matter with direction to render judgment in favor of the plaintiff.

       Prior to the filing of the motions for summary judgment at issue in this appeal by the plaintiff Margaret Jacaruso, the court, Doherty, J., granted her motion to implead Nationwide Mutual Insurance Company as a defendant. Jacaruso brought her action initially against the defendant Richard P. LebsM; however, because he was not a party to the motions for summary judgment that are the subject of this appeal, we refer in this opinion only to Nationwide Mutual Insurance Company as the defendant.

       In the stipulated facts presented to the trial court, Jacaruso conceded that the defendant was entitled under the policy to a credit against the uninsured-underinsured motorist limit only for the $50,000 paid by Geico to Picone. In her brief to this court, however, Jacaruso conceded that the defendant was entitled under the policy to a credit against the uninsuredunderinsured motorist limit only for the $50,000 Geico paid to her. As a result, apparently overlooking the stipulation she made to the trial court, Jacaruso contends on appeal that uninsured-underinsured motorist benefits in the amount of $250,000 remain from the $300,000 available to her under the terms of the policy prior to any further reductions. We disagree.
      Because it is well settled that a party is bound by the concessions made during trial by their attorney; Levine v. Levine, 88 Conn. App. 795, 804, 871 A.2d 1034 (2005); Jacaruso essentially has conceded that the defendant was entitled under the policy to a credit against the uninsured-underinsured motorist limit for both payments made by Geico totaling $100,000. Therefore, we conclude that the defendant is entitled to a credit in that amount, leaving $200,000 in coverage remaining prior to any further reductions.

       Although the denial of a motion for summary judgment is not a final judgment and is not ordinarily appealable, the rationale for this rule is not applicable when, as here, cross motions for summary judgment have been filed and the court has granted one of them. Accordingly, we may consider both of the summary judgment rulings contested by Jacaruso on appeal. See CTB Realty Ventures XXII, Inc. v. Markoski, 33 Conn. App. 388, 391 n.3, 636 A.2d 379, cert. granted on other grounds, 228 Conn. 929, 640 A.2d 115 (1994) (appeal withdrawn July 18, 1994).

       Jacaruso also claims that at the very least, because the provision in the policy allowing for the reduction of uninsiired-underinsured motorist benefits tracks only the language of § 38a-334-6 (d) (1) (A) and omits any language tracking § 38a-334-6 (d) (1) (C), it is ambiguous as to whether the defendant is allowed by the language of the policy to reduce those benefits because of its payment to Picone. Because we hold that the relevant language in the policy is plain and unambiguous and that there is no indication that this provision was intended to restrict payments applicable to a reduction in benefits to payments made by tortfeasors outside the policy or to exclude payments made by the defendant to Jacaruso, this claim has no merit.

       For ease of reference, I refer to § 38a-334-6 (d) (1) (A) as subparagraph (A) and to § 38a-334-6 (d) (1) (C) as subparagraph (C).

       General Statutes § 38a-336 (a) provides: “(1) Each automobile liability insurance policy shall provide insurance, herein called uninsured and under-insured motorist coverage, in accordance with the regulations adopted pursuant to section 38a-334, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom. Each insurer licensed to write automobile liability insurance in this state shall provide uninsured and underinsured motorists coverage with limits requested by any named insured upon payment of the appropriate premium, provided each such insurer shall offer such coverage with limits that are twice the limits of the bodily injury coverage of the policy issued to the named insured. The insured’s selection of uninsured and underinsured motorist coverage shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by any named insured. No insurer shall be required to provide uninsured and underinsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured, or (B) any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured.
      “(2) Notwithstanding any provision of this section to the contrary, each automobile liability insurance policy issued or renewed on and after January 1, 1994, shall provide uninsured and underinsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless any named insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by any named insured. No such written request for a lesser amount shall be effective unless any named insured has signed an informed consent form which shall contain: (A) An explanation of uninsured and underinsured motorist insurance approved by the commissioner; (B) a list of uninsured and underinsured motorist coverage options available from the insurer; and (C) the premium cost for each of the coverage options available from the insurer. Such informed consent form shall contain a heading in twelve-point type and shall state: “WHEN YOU SIGN THIS FORM, YOU ARE CHOOSING A REDUCED PREMIUM, BUT YOU ARE ALSO CHOOSING NOT TO PURCHASE CERTAIN VALUABLE COVERAGE WHICH PROTECTS YOU AND YOUR FAMILY. IF YOU ARE UNCERTAIN ABOUT HOW THIS DECISION WILL AFFECT YOU, YOU SHOULD GET ADVICE FROM YOUR INSURANCE AGENT OR ANOTHER QUALIFIED ADVISER.”

       Section 38a-334-6 (d) (1) of the Regulations of Connecticut State Agencies provides: “The limit of the insurer’s liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of section 14-112 of the general statutes, except that the policy may provide for the reduction of limits to the extent that damages have been (A) paid by or on behalf of any person responsible for the injury, (B) paid or are payable under any workers’ compensation law, or (C) paid under the policy in settlement of a liability claim.”


source: Caselaw Access Project

author: HARPER, J. FOTI, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. SILAS S.

    (AC 30034)
    Bishop, Harper and Foti, Js.
    Argued September 2
    officially released December 1, 2009

      Christopher Y. Duty, special public defender, for the appellant (defendant).

      Kevin T. Kane, chief state’s attorney, with whom were Tatiana A. Messina, deputy assistant state’s attorney, and, on the brief, Jonathan C. Benedict, state’s attorney, and Eileen F. McCarthy, senior assistant state’s attorney, for the appellee (state).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

HARPER, J.

The defendant, Silas S., appeals from the judgment of the trial court adjudicating him to be a youthful offender in violation of General Statutes § 54-76b for having committed the crime of criminal trespass in the second degree in violation of General Statutes § 53a-108 (a) (1). Specifically, he claims that the court improperly ordered him to pay restitution to the victims, the owners of the property on which he trespassed. We agree with the defendant and reverse in part the judgment of the trial court and remand the case for resentencing.

In 2008, the state filed an information charging the defendant as a youthful offender for having committed the crime of criminal trespass in the second degree. Following a trial before the court, the court, in an oral decision, found that on February 3, 2007, the defendant entered and remained unlawfully in an unoccupied house in Fairfield, which was being readied for sale by its owners. The court found that despite the defendant’s testimony that he did not know that the house was unoccupied, he knew that he was neither licensed nor privileged to enter and to remain on the property. The court adjudicated the defendant a youthful offender for committing the crime of criminal trespass in the second degree.

Immediately after the court rendered its decision, the prosecutor represented that the state had an interest in seeking restitution for the victims’ damages. During the trial, the state presented evidence that the defendant and approximately twenty-one other persons, all of whom were in their teens, entered the unoccupied house at issue to attend a party that was held at the property without the knowledge or consent of its owners. One of the owners of the house, Jeffrey Rutkowski, testified that upon inspecting it two days after the party, he discovered that the house was littered with trash, including beer cans, and that it had sustained extensive, intentional property damage caused by the partygoers. He testified that the cost to repair the damage exceeded $36,000. The court agreed to delay sentencing for the purpose of permitting the office of adult probation to complete a restitution investigation. At the sentencing hearing, the prosecutor represented that, after receiving restitution from other individuals who were present at the victims’ house, the victims still had not been reimbursed for all of the damages caused at the party on February 3, 2007. Accordingly, the state requested that an order of restitution be made part of the defendant’s sentence. In response, the defendant’s attorney argued that there was no evidence adduced at trial that the defendant had caused any of the victims’ damages.

In rendering its sentence, the court admonished the defendant for attending the party at the victims’ house. The court stated that the defendant had stood by, and had done nothing, while the victims’ property was damaged by others. The court also stated that eighteen other individuals who were present at the party had “paid their fair share” by making a restitution payment to the victims. The court stated: “[Y]ou are responsible for being there just as much as any of the other participants that were there, whether or not you picked up a marker and did the graffiti or whether or not you kicked out the parts of the staircase.” Thereafter, the court sentenced the defendant to a term of incarceration of ninety days, execution suspended, and a period of probation of two years. Among several special conditions of probation the court ordered was that the defendant make restitution to the victims in the amount of $2000.

The defendant claims that the court’s order to pay restitution was improper because there was no evidence, nor any finding by the court, that he had caused any damage at the house. The state argues that the court’s restitution order was reasonably related to the defendant’s rehabilitation and fell within the court’s wide latitude in fashioning an appropriate sentence in this case.

The court’s authority in sentencing a youthful offender is codified in General Statutes § 54-76j. The following provisions of that statute are relevant to the present appeal. “The court, upon the adjudication of any person as a youthful offender, may: (1) Commit the defendant; (2) impose a fine not exceeding one thousand dollars; (3) impose a sentence of conditional discharge or a sentence of unconditional discharge; (4) impose a sentence of community service; (5) impose a sentence to a term of imprisonment not greater than that authorized by the crime committed by the defendant, but in no event shall any such term exceed four years; (6) impose sentence and suspend the execution of the sentence, entirely or after a period set by the court; (7) order treatment pursuant to section § 17a-699; or (8). if a criminal docket for drug-dependent persons has been established pursuant to section 51-181b in the judicial district in which the defendant was adjudicated a youthful offender, transfer the supervision of the defendant to the court handling such docket.” General Statutes § 54-76j (a). “If execution of the sentence is suspended under subdivision (6) of subsection (a) of this section, the defendant may be placed on probation or conditional discharge for a period not to exceed three years, provided, at any time during the period of probation, after hearing and good cause shown, the court may extend the period as deemed appropriate by the court. ...” General Statutes § 54-76j (b).

In the present case, the court imposed a sentence of a term of imprisonment and suspended the execution of that sentence in accordance with § 54-76j (a) (6). The court placed the defendant on probation for a period of two years in accordance with § 54-76j (b). In imposing the sentence of probation, the court placed several conditions on the defendant. The only condition at issue in this appeal is that the defendant pay restitution to the victims in the amount of $2000. General Statutes § 53a-30 codifies the court’s authority in imposing a sentence of probation and conditional discharge. That provision illustrates sixteen conditions of probation that a court may impose on a defendant. General Statutes § 53a-30 (a) (1) through (16). General Statutes § 53a-30 (a) provides in relevant part: “When imposing sentence of probation or conditional discharge, the court may, as a condition of the sentence, order that the defendant ... (4) make restitution of the fruits of the defendant’s offense or make restitution, in an amount the defendant can afford to pay or provide in a suitable manner, for the loss or damage caused thereby and the court may fix the amount thereof and the manner of performance . . . .” Additionally, § 53a-30 (a) (17) grants the court broad authority to require that a defendant “satisfy any other conditions reasonably related to the defendant’s rehabilitation. . . .” General Statutes § 53a-30 (a) (17).

Thus, § 53a-30 (a) (4) specifically authorizes a court to require a defendant to pay restitution to his victim or victims. In reviewing the court’s order, we are mindful that “[t]he success of probation as a correctional tool is in large part tied to the flexibility within which it is permitted to operate. ... To ensure this success, the trial judge has an exceptional degree of flexibility in deteimining whether to grant . . . probation and on what terms.” (Citations omitted; internal quotation marks omitted.) State v. Pieger, 240 Conn. 639, 648, 692 A.2d 1273 (1997); see also State v. Faraday, 268 Conn. 174, 180, 842 A.2d 567 (2004). “The purpose of probation, as an alternative to incarceration, is to reform the defendant and to preserve public safety. . . . Furthermore, we have long held that probation is not ordered for the purpose of punishment for the wrong for which there has been a conviction, or for general wrongdoing. Its aim is reformatory and not punitive. It is to bring one who has fallen into evil ways under oversight and influences which may lead him to a better living. The end sought is the good of the individual wrongdoer, and not his punishment. . . . [Probation is not punitive. Accordingly, because the legislature enumerated restitution as a possible condition of a criminal defendant’s probation, it defies logic to conclude that restitution is punitive as a matter of law.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Fowlkes, 283 Conn. 735, 743-44, 930 A.2d 644 (2007).

Consistent with these principles, our Supreme Court also has emphasized that restitution properly is related to the damage or loss actually occasioned by the criminal activity that the defendant has committed: “[Restitution historically has not been regarded as punishment because it does not promote the traditional aims of punishment, namely, retribution and deterrence. Restitution simply serves the state’s rehabilitative interest in having a defendant take responsibility for his conduct through the act of making the victim whole” (Emphasis added.) Id., 744. Likewise, as set forth previously, § 53a-30 (a) (4) describes a court’s authority to order restitution in an amount commensurate with “the fruits of the defendant’s offense” or “for the loss or damage caused thereby . . . .” General Statutes § 53a-30 (a) (4).

The court unambiguously stated that the defendant was to pay $2000 in restitution to the victims. The court did not state that this payment was for any other rehabilitative purpose. The court also did not exercise its authority, pursuant to § 54-76j (a) (2), to impose a fine not exceeding $1000 on the defendant. Beyond ordering the defendant to pay restitution, however, the court did not find that he caused any damage to the victims or that he profited from his criminal activity. The court found that the defendant had committed the crime of criminal trespass in the second degree for his conduct in entering and remaining in the victims’ home on February 3, 2007; the defendant was not convicted of any crime requiring proof that he caused property damage or loss to the victims. Additionally, the state did not present any evidence, whether testimonial or physical in nature, to support a finding that the defendant caused any damage to the victims or that there were any fruits of his criminal activity that reasonably could be measured in monetary terms.

Our careful review of the evidence reveals that, in its case-in-chief, the state presented testimony from Kevin McKeon, the Fairfield police detective who investigated the incident. McKeon testified that of all of the persons who were at the party at the victims’ house, his investigation led him to the firm conclusion that only two individuals caused property damage to the house. Additionally, McKeon testified that he did not have any information that the defendant caused any property damage. The state presented testimony from one of the owners of the house, Jeffrey Rutkowski. Rutkowski testified concerning the nature and the extent of the damage caused throughout the house, but did not testify that the defendant, as opposed to any other partygoer, caused any damage. The state also presented the testimony of two individuals who attended the party at the home on February 3, 2007, Christopher I. and Samantha Z. Both of these witnesses testified that they knew the defendant prior to the party and observed the defendant during the party. Christopher I. testified that he did not observe the defendant cause any damage to the house. Samantha Z. testified that she did not see the defendant doing “anything inappropriately” during the party and that she did not see him cause any damage to the house.

During his trial testimony, the defendant testified that he was present at the victims’ house on February 3, 2007, for approximately two hours. Also, he testified that he had heard other partygoers making noise and had observed other partygoers causing damage to the house. The defendant testified that these observations in part prompted him to leave the party.

In light of the court’s findings and our examination of the evidence, we conclude that there was no basis for the court’s order to pay $2000 in restitution to the victims. The court did not state that there was any other rehabilitative purpose for this requirement, and we are unaware that any such purpose exists. Absent any evidence that the defendant profited at the expense of the victims or that he caused any measurable loss to the victims, we fail to see how any payment to the victims could have a legitimate rehabilitative effect on the defendant. Cf. State v. Fowlkes, supra, 283 Conn. 744-45 (court properly ordered defendant to pay restitution of medical expenses incurred by victim of defendant’s assault); State v. Cyr, 57 Conn. App. 743, 748, 751 A.2d 420 (requirement that defendant undergo sexual offender treatment deemed important component of his rehabilitation), cert. denied, 254 Conn. 905, 755 A.2d 883 (2000). The requirement that the defendant pay $2000 to the victims cannot properly be deemed restitution related to his offense. Absent any proper rehabilitative purpose for the requirement, we are left to conclude that it serves either to deter or to punish the defendant for his wrongdoing. Accordingly, we conclude that the order does not constitute fair restitution to the victims and does not further the defendant’s rehabilitation. For these reasons, it is not authorized by § 53a-30. The order to pay restitution must be set aside as an abuse of the court’s discretion.

The judgment is reversed only as to the sentence imposed and the case is remanded with direction to vacate the special condition of probation that the defendant make restitution to the victims in the amount of $2000 and for resentencing. The judgment is affirmed in all other respects.

In this opinion BISHOP, J., concurred.

FOTI, J.,

concurring in part and dissenting in part. I disagree with the majority’s conclusion that the order to pay restitution must be set aside as an abuse of the trial court’s discretion. Accordingly, I respectfully dissent from the portion of the majority opinion concerning the court’s order of restitution. I generally agree with the facts set forth in the majority opinion and will not repeat them in this opinion. I, however, disagree with the majority’s conclusion that the requirement that the defendant, Silas S., pay $2000 to the victims cannot properly be deemed restitution related to his offense and, therefore, that this court is “left to conclude that it serves either to deter or to punish the defendant for his wrongdoing.” I conclude that the order does constitute fair restitution to the victims, furthering the defendant’s rehabilitation and, therefore, is authorized by General Statutes § 53a-30. The order to pay restitution should not be set aside as an abuse of the court’s discretion.

I begin by underscoring that “[t]he success of probation as a correctional tool is in large part tied to the flexibility within which it is permitted to operate. . . . To ensure this success, the trial judge has an exceptional degree of flexibility in determining whether to grant . . . probation and on what terms.” (Citations omitted; internal quotation marks omitted.) State v. Pieger, 240 Conn. 639, 648, 692 A.2d 1273 (1997); see also State v. Faraday, 268 Conn. 174, 180, 842 A.2d 567 (2004). “The purpose of probation, as an alternative to incarceration, is to reform the defendant and to preserve public safety. . . . Furthermore, we have long held that probation is not ordered for the purpose of punishment for the wrong for which there has been a conviction, or for general wrongdoing. Its aim is reformatory and not punitive. It is to bring one who has fallen into evil ways under oversight and influences which may lead him to a better living. The end sought is the good of the individual wrongdoer, and not his punishment. . . . [Probation is not punitive. Accordingly, because the legislature enumerated restitution as a possible condition of a criminal defendant’s probation, it defies logic to conclude that restitution is punitive as a matter of law.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Fowlkes, 283 Conn. 735, 743-44, 930 A.2d 644 (2007). Also, § 53a-30 (a) provides in relevant part: “When imposing sentence of probation or conditional discharge, the court may, as a condition of the sentence, order that the defendant ... (4) make restitution of the fruits of the defendant’s offense or make restitution, in an amount the defendant can afford to pay or provide in a suitable manner, for the loss or damage caused thereby and the court may fix the amount thereof and the manner of performance . . . .” General Statutes § 53a-30 (a) (4).

I agree with the majority generally that “[consistent with these principles, our Supreme Court also has emphasized that restitution properly is related to the damage or loss actually occasioned by the criminal activity that the defendant has committed.” I, however, believe that the majority is misguided in ascribing to the court’s ruling an overly narrow view of “a [trial] court’s authority to order restitution in an amount commensurate with ‘the fruits of the defendant’s offense’ or ‘for the loss or damage caused thereby ....’”

In State v. Doriss, 84 Conn. App. 542, 854 A.2d 48, cert. denied, 271 Conn. 922, 859 A.2d 581 (2004), this court had an opportunity to interpret the meaning of the term “fruits” as used in § 53a-30 (a) (4). The court first noted that the statute does not define “fruits,” and, therefore, in the absence of such statutory guidance, it could appropriately look to the meaning of the word as commonly expressed in the law and in dictionaries. Id., 549, quoting Vitti v. Allstate Ins. Co., 245 Conn. 169, 178, 713 A.2d 1269 (1998). The court then stated that “ ‘[f]ruit’ can be defined as the outcome, consequence or result of some action.’ The Standard Encyclopedic Dictionary (1966). This common use of the term is often so employed to describe the product or end product of some action or omission. Significantly, Roget’s International Thesaurus (4th Ed. 1977) lists ‘fruit’ as a synonym for ‘product.’ ” (Emphasis added.) State v. Doriss, supra, 549. Under this definition, it is clear that the extensive damages sustained to an interior staircase and one or more interior walls were indeed the fruits of the defendant’s offense, as they undeniably were the outcome, consequence, result or end product of his criminal trespass.

Because I conclude that the damages to the house were the fruits of his criminal activity, I therefore conclude that the requirement that the defendant pay $2000 to the victims was restitution related to his offense. As a result, the order to pay restitution was not an abuse of the court’s discretion. Therefore, I dissent from that portion of the majority opinion concerning the court-ordered restitution. I would affirm the judgment of the trial court. In all other respects, I concur.

       Embedded in his analysis of this claim is an assertion by the defendant that the state failed to prove that he acted with the mental state necessary for the commission of the crime of criminal trespass in the second degree. The defendant did not list this issue in his statement of the issues raised in his brief and has done little more than mention the issue in passing in his analysis of the sole claim raised on appeal. This treatment of the issue does not satisfy the requirements of a properly briefed claim. See Practice Book § § 67-1 and 67-4. Therefore, to the extent that the defendant attempted to raise a separate and distinct claim in this regard, we decline to afford it review.

       At trial, the state had elicited evidence that one or more partygoers had caused extensive damage to an interior staircase of the house and had written on one or more interior walls of the house with a marker.

       The defendant has not challenged on appeal the court’s judgment of guilty of being a youthful offender or the suspended sentence and the sentence of probation.

       The state acknowledges that § 53a-30 (a) (4) applies to our analysis but also asserts that § 53a-30 (a) (17) applies and that in accordance with that provision, we should examine the restitution condition at issue to determine if it is reasonably related to the defendant’s rehabilitation. In interpreting § 53a-30 (a) (17), formerly § 53a-30 (a) (12), our Supreme Court has stated that its terms are “very broad.” (Internal quotation marks omitted.) State v. Misiorski, 250 Conn. 280, 287, 738 A.2d 595 (1999). “By allowing the trial court to impose ‘any other conditions reasonably related to [the defendant’s] rehabilitation’ . . . the legislature authorized the court to impose any condition that would help to secure the defendant’s reformation. This broad power is consistent with the goals of probation. . . . Additionally, because probation is, first and foremost, a penal alternative to incarceration — its objectives are to foster the offender’s reformation and to preserve the public’s safety — a sentencing court must have the discretion to fashion those conditions of probation it deems necessary to ensure that the individual successfully completes the terms of probation.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Id. Because we conclude that the requirement at issue is not reasonably related to the defendant’s rehabilitation, we conclude that the order to pay restitution is not authorized by § 53a-30 (a) (17).

       The dissent reasons that the extensive damage to the interior walls and a staircase within the victims’ house “undeniably were the outcome, consequence, result or end product oí [the defendant’s] criminal trespass.” Accordingly, the dissent concludes that these damages suffered by the victims were the fruits of the defendant’s offense, for which the court properly ordered the payment of restitution. Respectfully, we disagree with this conclusion and, on the basis of the record before us, conclude that the fruit of the defendant’s offense, criminal trespass in the second degree, consisted merely of his unlawful presence in the victims’ house on February 3, 2007. Nothing in the record suggests that the defendant’s presence in the house was causally related to the extensive damages for which the court awarded a payment of restitution to the victims. Presumably, if any evidence supported a finding that the defendant had caused the damage at issue, the state would have charged the defendant with an offense related to his conduct in this regard, such as criminal mischief.

       I join the majority in declining to review as inadequately briefed any separate and distinct claim regarding the assertion that the state failed to prove that the defendant acted with the mental state necessary for the commission of the crime of criminal trespass in the second degree.

       Also, because I conclude that the requirement at issue is reasonably related to the defendant’s rehabilitation and, therefore, authorized by § 53a-30 (a) (4), I need not reach the issue of whether the order to pay restitution was authorized by § 53a-30 (a) (17).


author: WEST, J.

text:
    MARJORIE VORONUK v. ELECTRIC BOAT CORPORATION ET AL.
    (AC 29589)
    DiPentima, Robinson and West, Js.

      Argued September 9
    officially released December 1, 2009

      Carolyn P. Kelly, for the appellant (plaintiff).

      Peter D. Quay, for the appellee (named defendant).

      Michael J. McAuliffe, for the appellees (defendant ACE USA et al).

      Marian H. Yun, for the appellee (defendant Liberty Mutual Insurance Company).
   Opinion

WEST, J.

In this workers’ compensation matter, the plaintiff, Marjorie Voronuk, appeals from the decision of the workers’ compensation review board (board) affirming the workers’ compensation commissioner’s dismissal of her claim against the defendant Electric Boat Corporation for survivor’s benefits pursuant to General Statutes § 31-306. On appeal, the plaintiff claims that board improperly concluded that the commissioner properly applied the substantial contributing factor test when he found that the decedent’s workplace exposure to asbestos was not a substantial contributing factor in his death. We affirm the decision of the board.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. Joseph Voronuk, the plaintiffs late husband, who died in 1995, testified by deposition on November 14, 1989, that he first worked for the defendant in 1942 as a shipfitter for approximately six months to one year and that during that period he was exposed to asbestos while on the job. He and the plaintiff were married in 1947 and remained married and living together until his death. He resumed employment with the defendant in 1951 as a carpenter. He testified that in the course of his employment as a carpenter for the defendant he was exposed to asbestos. He testified that in 1982, due to complaints of chest pain, he was examined by Paul Gerity, a physician. Gerity’s notes of the examination reveal that the decedent was fearful that his prolonged exposure to asbestos on the job made him susceptible to asbestosis. The decedent’s medical records show that from October, 1982, through April, 1986, he was treated by Gerity and William G. Crawford, another physician, for, among other things, complaints of chest pain. The decedent also testified that in 1985, at the defendant’s request, he had a medical screening for asbestosis performed by personnel at Boston University Medical Center. It was as a result of this medical screening that he first learned of his diagnosis of asbestosis. On March 17, 1986, he filed with the commissioner a form 30-C, claiming that his lung disease was a result of workplace exposure to lung irritants. The decedent retired from the defendant’s employ in 1986.

The decedent thereafter continued to monitor and to treat his lung condition, although it worsened. In September, 1993, he was hospitalized and diagnosed with congestive heart failure, cardiomyopathy, asbestosis and chronic obstructive pulmonary disease. He was again hospitalized in July and November, 1994, due to complications resulting from congestive heart failure, pleural effusions, cardiomegaiy, chronic obstructive pulmonary disease, hypoxia and asbestosis. He died on October 13, 1995. His death certificate listed the immediate cause of death as cardiorespiratory arrest due to cardiomyopathy and congestive heart failure. It also listed diabetes mellitus as another condition contributing to death but not related to cause.

On December 6,1995, the plaintiff filed with the commissioner a form 30-C seeking survivor’s benefits. In 1996, Mark R. Cullen, a physician, reviewed the decedent’s medical records and prepared a report that the plaintiff submitted to the commissioner. Cullen’s report initially set out the basis for the opinions contained therein and concluded: “Putting all the above information into context, it would be my opinion that underlying restrictive lung disease was a contributory factor in the development of cardiorespiratory failure which ultimately caused [the decedent’s] demise in 1995. Since his interstitial lung disease was due to asbestosis, I would consider his work exposure contributory to his death.” This report, along with the death certificate, was the only evidence the plaintiff submitted concerning the cause of the decedent’s death. In a decision dated November 28, 2006, the commissioner dismissed the plaintiffs claim for survivor’s benefits, stating: “The decedent’s death was caused, in part, by his exposure to asbestos while employed with the respondent. Regretfully, I find and conclude that no physician or medical report opined that this exposure and resulting asbestosis was a substantial and/or significant contributing factor to his death. At best, it was a ‘contributing factor.’ ... As such, the [plaintiffs] claim for survivor’s benefits must fail.” The plaintiff appealed to the board, which affirmed the commissioner’s decision. The board concluded that Cullen’s report “lack[ed] any evaluation as to the relative weight of the [various] factors [that contributed to the decedent’s death], and it would be conjecture to infer [that the plaintiffs expert] had an opinion as to the relative significance of any specific risk factor from the text of the report.” This appeal followed. Additional facts will be put forth as necessary.

Preliminarily, we set forth the applicable standard of review. “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. . . . Neither the . . . board nor this court has the power to retry facts. . . . [0]n review of the commissioner’s findings, the [review board] does not retry the facts nor hear evidence. It considers no evidence other than that certified to it by the commissioner, and then for the limited purpose of determining whether or not the finding should be corrected, or whether there was any evidence to support in law the conclusions reached. It cannot review the conclusions of the commissioner when these depend upon the weight of the evidence and the credibility of witnesses. . . . The finding of the commissioner cannot be changed unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed. . . . If supported by competent evidence and not inconsistent with the law, the commissioner’s inference that an injury did or did not arise out of and in the course of employment is, thus, conclusive.” (Internal quotation marks omitted.) Hummel v. Marten Transport, Ltd., 114 Conn. App. 822, 842-44, 970 A.2d 834, cert. denied, 293 Conn. 907, 978 A.2d 1109 (2009).

We also note that traditional concepts of proximate cause furnish the appropriate analysis for determining causation in workers’ compensation cases. See Dixon v. United Illuminating Co., 57 Conn. App. 51, 60, 748 A.2d 300, cert. denied, 253 Conn. 908, 753 A.2d 940 (2000). “[T]he test for determining whether particular conduct is a proximate cause of an injury [is] whether it was a substantial factor in producing the result.” (Internal quotation marks omitted.) Id.

On appeal, the plaintiff claims that the board improperly concluded that the commissioner properly applied the substantial contributing factor test when he found that workplace exposure to asbestos was not a substantial contributing factor in the decedent’s death. Specifically, the plaintiff claims that the board improperly ruled that the commissioner had discretion to deny her claim for survivor’s benefits once the commissioner found that the decedent’s death was caused, in part, by workplace exposure to asbestos. Furthermore, the plaintiff contends, because the word contribute “carries in itself the significance of a causal connection between the negligence and the injury”; Smirnoff v. McNerney, 112 Conn. 421, 425, 152 A. 399 (1930); once there was a finding that the workplace injury contributed to the decedent’s death and was a cause of death, the commissioner, as a matter of law, was required to make a finding that it was trivial or de minimis for it not to be found a substantial factor.

The plaintiff contends that our Supreme Court in Birnie v. Electric Boat Corp., 288 Conn. 392, 953 A.2d 28 (2008), defined the “substantial factor” test of causation in a workers’ compensation case such that it is met if the “employment, or the risks incidental thereto, contribute[d] to the development of the injury in more than a de minimis way." (Emphasis in original.) Id., 412-13. Furthermore, in light of the precedent set forth in Bimie, the plaintiff argues that once the workplace exposure was found to be a cause of the decedent’s death, the only means to “defeat” it as a substantial factor in causing his death was for the commissioner to find that it was a trivial or de minimis cause such that the law could not recognize it as a cause. Therefore, because there was no such finding, the commissioner improperly determined that workplace exposure was not a substantial factor in the decedent’s death and we should reverse the board’s decision affirming the commissioner’s decision. Alternatively, the plaintiff argues that the case should be remanded to the commissioner with direction to determine whether the workplace exposure was a trivial or de minimis cause. We are not persuaded.

In Bimie, our Supreme Court had to determine “whether the causation standard applied by a United States Department of Labor administrative law judge ... in a prior proceeding brought under the federal Longshore and Harbor Workers’ Compensation Act ... is less stringent than the ‘substantial factor’ causation standard utilized in cases brought under the state Workers’ Compensation Act . . . such that the relitigation of causation under the state act is barred by the doctrine of collateral estoppel.” Birnie v. Electric Boat Corp., supra, 288 Conn. 394. In making that determination, the court examined in great detail and at some length the substantial factor standard as applied in workers’ compensation cases under the state act. See id., 409-13. Our Supreme Court stated: “In accordance with our case law, therefore, the substantial factor causation standard simply requires that the employment, or the risks incidental thereto, contribute to the development of the injury in more than a de minimis way.” (Emphasis in original.) Id., 412-13. The plaintiffs argument that this language, read in the context of the applicable precedential guidance, somehow removed from the commissioner the discretion to deny the plaintiffs claim once he decided that workplace exposure caused, in part, the decedent’s death, simply is untenable. Nowhere does the Bimie opinion expressly state such to be the case, and such a reading cannot, in light of established precedent, reasonably be inferred. Moreover, such a reading would render the substantial factor test nugatory.

The procedural posture that provided the context in which the court in Bimie addressed the substantial factor test, as well as the context in which the quoted language on which the plaintiff depends appears, underscores our conclusion. Bimie involved extending collateral estoppel to decisions on causation reached in a contested hearing awarding benefits under federal law. Therefore, in Bimie, when our Supreme Court set out the history and parameters of the substantial factor test, it was confronted with determining whether the substantial factor test was more or less rigorous than the test applied by federal administrative law judges in adjudications involving the federal law. As a result, it is clear that the court’s aim was not to clarify — much less alter — the substantial factor test but to explicate it in such a way as to facilitate a fair comparison with the federal test in question. The substantial factor test remains as it was prior to Bimie, and the plaintiffs argument otherwise is unfounded. We conclude, in light of the precedents that guide us, that the board did not improperly find that the commissioner retained his discretion to conclude that a cause of the decedent’s death was not, as a matter of law, a “substantial contributing factor” in his death, as required under our workers’ compensation scheme.

Last; our review of the record reveals that the commissioner did not abuse his discretion in concluding that workplace exposure was not a substantial factor in causing the decedent’s death. The plaintiff claims that the commissioner improperly denied her claim because her expert did not use the term “substantial” when he concluded that workplace exposure was a contributory factor in the decedent’s death. The plaintiff essentially argues that the commissioner was looking for the “magic word,” such as “substantial” or “significant.” The plaintiffs reading of the commissioner’s conclusion is too narrow. We conclude that the commissioner merely was stating that the plaintiff had failed to carry her burden of proving that the asbestos exposure was a substantial contributing factor in the decedent’s death. It is clear that the commissioner’s phrase, “no physician or medical report opined that this exposure and resulting asbestosis was a substantial and/or significant contributing factor to [the decedent’s] death,” can be reasonably interpreted to mean, “there is not sufficient evidence on the record to support a finding that this exposure and resulting asbestosis was a substantial and/or significant contributing factor to his death.” Opine means to express or make known an opinion See Merriam-Webster’s Collegiate Dictionary (11th Ed. 2005). Properly read, the conclusion that “no physician or medical report [expressed an opinion] that this exposure and resulting asbestosis was a substantial and/ or significant contributing factor to [the decedent’s] death” clearly does not include a demand for “magic” words of any sort.

Also, the record clearly supports such a finding. As noted previously, the only evidence in the record directly relating to the decedent’s death consisted of the two page report from Cullen and the death certificate. We agree with the board that Cullen’s “report lackfed] any evaluation as to the relative weight of the [various] factors [that contributed to the decedent’s death], and it would be conjecture to infer [that the plaintiffs expert] had an opinion as to the relative significance of any specific risk factor from the text of the report.” Because “[t]he 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”; (internal quotation marks omitted) Hummel v. Marten Transport, Ltd., supra, 114 Conn. App. 842; we conclude that the commissioner properly applied the substantial contributing factor test when he found that workplace exposure to asbestos was not a substantial contributing factor in the decedent’s death and, therefore, properly dismissed the plaintiffs claim.

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

In this opinion the other judges concurred.

       In addition to Electric Boat Corporation, ACE USA, St. Paul Travelers and Liberty Mutual Insurance Company also were named as defendants. For convenience, we refer in this opinion to Electric Boat Corporation as the defendant.

       The plaintiff submitted into evidence several other exhibits concerning the diagnosis of asbestosis, including medical reports from Gerity, Crawford and other physicians, records generated from inpatient hospital stays and X rays, as well as the decedent’s November 14, 1989 deposition.

       Further supporting our conclusion that the court did not intend in Bimie to alter the substantial factor test to mean that once a workplace exposure is found to be a cause of an ipjury, the only means to “defeat” it as a substantial factor in causing that injury is for the commissioner to find that it was a trivial or de minimis cause such that the law could not recognize it as a cause, is the very description of the substantial factor test that precedes the quoted language on which the plaintiff relies. It reads, in relevant part: “The substantial factor standard was adopted not only to distinguish compensable injuries from those that are merely contemporaneous or coincident with the employment, but also to distinguish those injuries where the employment playjs] a part of so minor a character that the law cannot recognize [it] as [a cause]. [Moreover] [c]auses traced clear to the end which become of trivial consequences, mere incidents of the operating cause, may be, in a sense, factors, but are so insignificant that the law cannot fasten responsibility upon one who may have set them in motion. They are not substantial factors as operative causes. To be factors of this degree they must have continued down to the moment of the damage, or, at least, down to the setting in motion of the final active injurious force which immediately produced (or preceded) the damage.” (Citation omitted; internal quotation marks omitted.) Birnie v. Electric Boat Corp., supra, 288 Conn. 411.
      Further supporting our conclusion is the footnote immediately following the quoted portion of the opinion. It states in relevant part: “As the question of whether the conditions of employment are a substantial factor in bringing about an injury is one of fact . . . and considering that what constitutes a substantial factor will, therefore, vary with the circumstances of each case, an attempt to articulate a more precise standard may, in practice, be unnecessarily restrictive, and may inadvertently foreclose a claimant’s right to compensation.” (Citation omitted; emphasis added.) Id., 413 n.ll.

       “It is well settled in workers’ compensation cases that the injured employee bears the burden of proof, not only with respect to whether an injury was causally connected to the workplace, but that such proof must be established by competent evidence.” Keenan v. Union Camp Corp., 49 Conn. App. 280, 282, 714 A.2d 60 (1998).