author: DALY, J.

text:
    STATE OF CONNECTICUT v. EDWARD PARKER
    (AC 21043)
    Dranginis, Flynn and Daly, Js.
    Argued October 15
    officially released December 18, 2001

      William A. Snider, for the appellant (defendant).

      Margaret Gaffney Radionovas, assistant state’s attorney, with whom, on the brief, was Scott J. Murphy, state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Edward Parker, appeals from the judgment of conviction of murder in violation of General Statutes § 53a-54a, rendered after his guilty plea under the Alford doctrine. On appeal, the defendant claims that the trial court improperly (1) accepted his guilty plea because it was not made knowingly, intelligently and voluntarily, and (2) denied his motion to withdraw his guilty plea. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. On September 15, 1995, Omar Honoré was a passenger in a motor vehicle being operated by the defendant in New Britain. While driving toward Berlin, the defendant fatally shot Honoré twice in the head with a .22 caliber handgun. The defendant was arrested and charged with murder in violation of § 53a-54a (a) and felony murder in violation of General Statutes § 53a-54c. On June 4, 1999, a substitute information was filed, charging the defendant with murder in violation of § 53a-54a (a) and robbery in the first degree with a deadly weapon in violation of General Statutes § 53a-134 (a) (2).

On July 20, 1999, the defendant pleaded guilty to the murder count in exchange for a prison sentence of thirty years. During the trial court’s canvass of the defendant, the defendant informed the court that he wanted to say something. In response, the court stated that the correct time in which to make a statement would be during the sentencing hearing. Upon concluding the canvass, the court accepted the defendant’s plea of guilty under the Alford doctrine, finding that it was made knowingly and voluntarily, with the assistance of competent counsel.

On October 14, 1999, the defendant appeared before the court for sentencing under the plea agreement. During the sentencing hearing, the defendant reiterated that he would like to speak. The defendant stated that he “was not happy with [his] lawyer” and was seeking the aid of new counsel. In response, the court informed the defendant that his plea of guilty was accepted at the prior court date and could not now be changed in the absence of some legal justification. Because the defendant failed to state a sufficient reason that would permit the court to allow him to withdraw his plea of guilty other than that he “was not happy with [his] lawyer,” the trial court denied his request to withdraw his guilty plea and sentenced him to the agreed on thirty years in prison. Additional facts will be discussed where relevant to the issues raised.

I

The defendant’s first claim is that the court improperly accepted his guilty plea because it was not made knowingly, intelligently and voluntarily. The defendant claims that the court’s failure to ascertain the substance of what he wanted to say before entering his plea rendered his plea of guilty defective and violated constitutional principles and Practice Book § 39-20. We are not persuaded.

The defendant did not preserve this claim at trial, but seeks to have it reviewed pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In Golding, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id., 239-40. “In the absence of any one of these conditions, the defendant’s claim will fail.” Id., 240.

In this case, the defendant satisfies the first two prongs of Golding because an adequate record exists to review his claim and he alleges a constitutional violation. The defendant, however, cannot prevail under the third prong of Golding because he cannot demonstrate that a constitutional violation clearly exists that clearly deprived him of a fair trial.

In determining the validity of a plea, “[t]he standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). “The question of an effective waiver of a federal constitutional right in a proceeding is of course governed by federal standards.” Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). The United States Supreme Court enunciated in Boykin that several federal constitutional rights are waived when a defendant pleads guilty: the privilege against compulsory self-incrimination; the right to trial by jury; and the right to confront one’s accusers. Id. A waiver of these rights cannot be presumed from a silent record. Id. The trial court is required to address the defendant personally to ascertain whether the plea that the defendant intends to enter has been made voluntarily and knowingly. These requirements also have been codified in Practice Book § 39-19.

A review of all the relevant circumstances clearly indicates that the defendant intelligently and voluntarily entered his Alford plea. Although initially stating that he wanted to say something to the trial court, the defendant, after speaking to his attorney, agreed to postpone making any statements until the sentencing hearing. In proceeding with the canvass, the court went to great lengths to ensure that the plea of guilty was made intelligently and voluntarily, and that the defendant knew of the ramifications that would follow if the plea were to be accepted.

The court read the statute under which the defendant was pleading guilty, stating the maximum and minimum sentences that he could face. The defendant affirmatively stated that he understood the rights that he was giving up by pleading guilty and that he was satisfied with the advice he had received from his attorney. Additionally, the court informed the defendant that he could not withdraw his plea if it were accepted. Specifically, the court asked the defendant, “Do you understand if I accept your guilty plea here today, you cannot come back to this court after today and move to withdraw the guilty plea, unless there is a legal reason to do so,” to which the defendant responded, “I understand.” The court then stated, “What that means, simply put, Mr. Parker, is that once I accept your guilty plea today, you can’t change your mind. Do you understand?” The defendant replied, “Yes, I do.” Upon concluding that the defendant’s plea was knowingly and voluntarily made, and that the defendant understood that once accepted, his plea could not later be withdrawn, the court accepted the plea.

To ensure further that the plea was entered into intelligently and that the canvass was complete as to the issue of self-incrimination, the court recalled the defendant into court. During this second canvass, the defendant once again stated that he understood that he could not withdraw his plea at a later date. At the conclusion of the second canvass, the court once again found that the defendant’s plea was made knowingly and voluntarily.

In complying with the mandates of Practice Book § 39-19, the court properly determined that the defendant’s plea of guilty was made voluntarily, knowingly and intelligently, consistent with constitutional principles. The defendant, therefore, has failed to demonstrate that a constitutional violation clearly exists that clearly deprived him of a fair trial.

II

The defendant’s second claim is that the court improperly denied his motion to withdraw his guilty plea because the plea was not made voluntarily. We are not persuaded.

“A guilty plea, once accepted, maybe withdrawn only with the permission of the court. . . . The court is required to permit the withdrawal of a guilty plea upon proof of any ground set forth in Practice Book § [39-27], . . . Whether such proof is made is a question for the court in its sound discretion, and a denial of permission to withdraw is reversible only if that discretion has been abused.” (Internal quotation marks omitted.) State v. Gundel, 56 Conn. App. 805, 812, 746 A.2d 204, cert. denied, 253 Conn. 906, 753 A.2d 941 (2000). “The burden is always on the defendant to show a plausible reason for the withdrawal of a plea of guilty.” (Internal quotation marks omitted.) State v. Andrews, 253 Conn. 497, 505-506, 752 A.2d 49 (2000).

After a plea is accepted, Practice Book § 39-27 provides the circumstances under which a plea can be withdrawn. In the present case, the defendant claims that he should have been able to withdraw his plea because it was “accepted without substantial compliance with [Practice Book] § 39-19” and because “the plea was involuntary . . . .” Practice Book § 39-27 (1) and (2). Having concluded in part I of this opinion that the defendant’s plea was accepted in accordance with the requirements of Practice Book § 39-19 and that the plea was made voluntarily, we conclude that the trial court did not abuse its discretion in refusing to allow the defendant to withdraw his guilty plea.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with the intent to cause the death of another person, he causes the death of such person . . . .”

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). “A defendant who pleads guilty under the Alford doctrine does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea.” (Internal quotation marks omitted.) State v. Webb, 62 Conn. App. 805, 807 n.1, 772 A.2d 690 (2001).

       Practice Book § 39-20 provides in relevant part: “The judicial authority shall not accept a plea of guilty . . . without first determining, by addressing the defendant personally in open court, that the plea is voluntary and is not the result of force or threats or of promises apart from a plea agreement.

       Practice Book § 39-19 provides: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands:

        “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      "(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.”

       According to the defendant, although there was no formal motion to withdraw his plea, this was the trial court’s understanding of the defendant’s intention and was treated as such.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    KEVIN R. STANLEY v. COMMISSIONER OF CORRECTION
    (AC 20530)
    Schaller, Mihalakos and O’Connell, Js.
    Submitted on briefs September 12
    officially released December 18, 2001

      Richard C. Marquette, special public defender, filed a brief for the appellant (defendant).

      Michael Dearington, state’s attorney, and Mitchell S. Brody and Mary Elizabeth Baran, senior assistant state’s attorneys, filed a brief for the appellee (state).
   Opinion

PER CURIAM.

The petitioner, Kevin R. Stanley, appeals from the judgment of the habeas court denying his second amended petition for a writ of habeas corpus dated April 23, 1999. On January 12, 2000, the court granted the petitioner’s timely petition for certification to appeal. On appeal, the petitioner claims that the habeas court improperly (1) concluded that he failed to demonstrate that he received ineffective assistance of trial counsel and (2) rejected his claim of actual innocence. We affirm the judgment of the habeas court.

On November 7,1989, the petitioner became involved in an altercation that culminated in his shooting Javin Green at the corner of Dixwell Avenue and Argyle Street in New Haven. Green later died from the gunshot wounds. Following a jury trial, the petitioner was convicted of murder pursuant to General Statutes § 53a-54a. On direct appeal, our Supreme Court upheld his conviction. State v. Stanley, 223 Conn. 674, 613 A. 2d 788 (1992).

The petitioner filed an amended petition for a writ of habeas corpus on February 11, 1999, and a second amended petition on April 23, 1999. In the second amended petition, the petitioner claimed that his trial counsel’s assistance was ineffective and, thus, that he was denied adequate counsel and his due process rights under the sixth and fourteenth amendments to the United States constitution and under article first, § 8, of the constitution of Connecticut. Specifically, the petitioner argued that his trial counsel was ineffective because he failed to adequately “(1) consult and advise the petitioner as to the evidence, defenses, plea negotiations, the consequence of his plea, whether to testify and as to the suppression of his statement, (2) investigate facts, witnesses and police reports, (3) prepare for the hearing in probable cause, suppression of his statement and identification, for cross-examination of witnesses and presentation of evidence, (4) prepare for trial to represent and exclude evidence, cross-examine and set out a theory of defense for effective argument on the motion for judgment of acquittal and closing argument and (5) preserve petitioner’s right to sentence review.”

After considering the evidence presented at the habeas hearing and assessing the credibility of the witnesses, the habeas court found that the petitioner failed to show that his counsel’s representation fell below an objective standard of reasonableness. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Accordingly, the court denied the petitioner’s claim of ineffective assistance of counsel.

“Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Goodrum v. Commissioner of Correction, 63 Conn. App. 297, 299, 776 A.2d 461, cert. denied, 258 Conn. 902, 782 A.2d 136 (2001).

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, supra, 466 U.S. 686. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Crump v. Commissioner of Correction, [61 Conn. App. 55, 58-59, 762 A.2d 491 (2000)]. In order ... to prevail on a constitutional claim of ineffective assistance of counsel, [the petitioner] must establish both (1) deficient performance, and (2) actual prejudice. ... Id., 59, quoting Bunkley v. Commissioner of Correction, 222 Conn. 444, 445, 610 A.2d 598 (1992). To prove that his counsel’s performance was deficient, the petitioner must demonstrate that counsel’s representation fell below an objective standard of reasonableness. . . . Henry v. Commissioner of Correction, 60 Conn. App. 313, 317, 759 A.2d 118 (2000). Furthermore, the petitioner must establish not only that his counsel’s performance was deficient, but that as a result thereof he suffered actual prejudice, namely, that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, supra, [694]. Crump v. Commissioner of Correction, supra, 59.” (Internal quotation marks omitted.) Milner v. Commissioner of Correction, 63 Conn. App. 726, 738, 779 A.2d 156 (2001). Our review of the record reveals that the petitioner has failed to make a showing that he has been denied the effective assistance of counsel or his due process rights under the sixth and fourteenth amendments to the United States constitution or article first, § 8, of the constitution of Connecticut.

Furthermore, the petitioner’s second amended petition solely presents a claim of ineffective assistance of counsel. Nowhere in his petition does he allege actual innocence. This claim was first raised in his appellate brief. We therefore decline to consider it on appeal. See Baker v. Cordisco, 37 Conn. App. 515, 522, 657 A.2d 230, cert. denied, 234 Conn. 907, 659 A.2d 1207 (1995).

The judgment is affirmed.

       The court also restored the petitioner’s right to sentence review.


author: LAVERY, C. J. FLYNN, J.,

text:
    MICHAEL DIBELLO v. BARNES PAGE WIRE PRODUCTS, INC., ET AL.
    (AC 20612)
    Lavery, C. J., and Dranginis and Flynn, Js.

      Argued September 20
    officially released December 18, 2001

      Leo Gold, for the appellant (named defendant).

      Michael J. McAuliffe, for the appellees (defendant Aetna Casualty & Surety Company et al.).
   Opinion

LAVERY, C. J.

The named defendant, Barnes Page Wire Products, Inc., appeals from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner (commissioner) concluding that the defendant lacked insurance coverage at the time of the injury suffered by the plaintiff, Michael DiBello. The defendant claims on appeal that the board improperly affirmed the commissioner’s decision because (1) the defendant’s insurer failed to comply with the cancellation notice requirements of General Statutes § 31-348, (2) the defendant’s insurer waived the right to contest coverage when it filed a notice contesting liability pursuant to General Statutes § 31-294c and (3) the defendant’s insurer waived the right to contest coverage when it sent the defendant a letter stating that it would represent the defendant at a hearing. We affirm the decision of the board.

The following facts and procedural history are relevant to the issues on appeal. On August 10, 1993, the plaintiff injured his back while working for the defendant. On September 29, 1993, he filed a claim for workers’ compensation benefits. In a July 15, 1996 finding and award, the commissioner determined that the injury was compensable. The July 15, 1996 finding and award is not challenged on appeal.

The defendant, prior to the plaintiffs injury, contracted with Aetna Casualty & Surety Company (Aetna) for workers’ compensation insurance coverage for the period of February 26, 1992, to February 26, 1993. On December 3, 1992, the defendant received from Aetna a “Notice of Cancellation or Nonrenewal,” stating that due to the defendant’s adverse loss experience, Aetna was unwilling to continue to provide coverage. A box on the notice was checked alongside the statement, “We are cancelling this policy. Your insurance will cease on the Date of Cancellation shown above.” The “date of cancellation” box to which that statement referred was blank. The “expiration date” box was, however, filled in with the date that the policy was due to expire, February 26, 1993. Upon receiving that notice, the defendant began to search for another workers’ compensation insurance carrier.

A principal of the defendant contacted an insurance agent and, by February 26, 1993, believed that he had secured a new policy with Ohio Casualty Group Insurance Company (Ohio Casualty). The defendant received a bill from the agent and remitted the required premium payment. It was later determined that the agent had misled the defendant regarding the policy with Ohio Casualty. Ohio Casualty in fact had declined to offer the defendant coverage, and the agent had retained the defendant’s premium payment for his personal use. The agent later obtained insurance from ITT Hartford Group, Inc. (ITT Hartford), with coverage commencing August 14, 1993. When the plaintiff filed for benefits for his August 10, 1993 injury, the agent forwarded the claim to ITT Hartford.

After the plaintiffs injury was found to be compensable, a series of hearings was held before the commissioner to determine which of the three insurers, if any, afforded coverage to the defendant at the time of the plaintiffs injury. The commissioner concluded that, under the circumstances, none of the insurers provided coverage on August 10, 1993, and, therefore, the defendant was responsible for paying the benefits due to the plaintiff. The commissioner considered that the situation did not result from any fault on the part of the defendant and did not order it to pay any fines, penalties, interest or sanctions. The defendant appealed to the board, which affirmed the commissioner’s decision as to Aetna and ITT Hartford, and remanded the matter for further proceedings regarding Ohio Casualty. Thereafter, the defendant brought this appeal.

“The standard applicable to the board when reviewing a commissioner’s decision is well established. The board sits as an appellate tribunal reviewing the decision of the commissioner. . . . [T]he review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [T]he power and duty of determining the facts rests on the commissioner .... The commissioner may base his or her findings on circumstantial evidence .... Where the subordinate facts allow for diverse inferences, the commissioner’s selection of the inference to be drawn must stand unless it is based on an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Chappell v. Manafort Bros., Inc., 63 Conn. App. 630, 633, 778 A.2d 225, cert. denied, 257 Conn. 911, 782 A.2d 133 (2001).

“This court’s review of decisions of the board is similarly limited. . . . 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. . . . [W]e must interpret [the commissioner’s finding] with the goal of sustaining that conclusion in light of all of the other supporting evidence. . . . Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it.” (Internal quotation marks omitted.) Id.

I

The defendant first claims that the board improperly affirmed the decision of the commissioner because Aetna failed to comply with the cancellation notice requirements of § 31-348 and, therefore, Aetna’s policy remained in effect on the date of the plaintiffs injury. We disagree.

“Whether an insurer gave notice of cancellation is ... a question of fact . . . .” 2 G. Couch, Insurance (3d Ed. 1995) § 30:21, p. 30-28. The commissioner found that the December 3, 1992 notice sent by Aetna to the defendant was a notice of nonrenewal, rather than a notice of cancellation. Because that factual finding of the commissioner has support in the record, we decline to disturb it. The commissioner concluded that the policy, by its own ternas, expired on February 26, 1993, and, therefore, Aetna afforded no coverage to the defendant on August 10, 1993, when the plaintiff was injured.

On appeal to the board, the defendant argued that the notice of nonrenewal was ineffective because Aetna did not comply with the requirements of § 31-348 and, consequently, the policy remained in effect. Pursuant to that section, the cancellation of a workers’ compensation insurance policy is not effective until fifteen days after the insurer notifies the workers’ compensation commission of that cancellation. See footnote 3. The board disagreed, concluding that Aetna “was [not] attempting to cancel its policy within the meaning of § 31-348.”

Our determination of whether the board correctly applied the law to the subordinate facts requires us to construe § 31-348 to discern whether the legislature intended the notice requirements of that provision to apply to an insurer’s nonrenewal of a policy. Our research has uncovered no judicial opinion directly addressing the matter. “It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and review board. . . . [Nonetheless,] [w]here ... [a workers’ compensation] appeal involves an issue of statutory construction that has not yet been subjected to judicial scrutiny, this court has plenary power to review the administrative decision.” (Citations omitted; internal quotation marks omitted.) Krevis v. Bridgeport, 63 Conn. App. 328, 330, 777 A.2d 196 (2001).

In determining whether the notice requirements of § 31-348 apply to Aetna’s nonrenewal of the defendant’s policy, “[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to discern that intent, we look to the words of the statute itself, [and] to the legislative history and circumstances surrounding its enactment .... Furthermore, statutory language should be given its plain and ordinary meaning. . . . We refrain from reading into statutes provisions that are not clearly stated and inteipret statutory intent by referring to what the legislative text contains, not by what it might have contained.” (Citations omitted; internal quotation marks omitted.) State v. Stewart, 64 Conn. App. 340, 348-49, 780 A.2d 209, cert. denied, 258 Conn. 909, 782 A.2d 1250 (2001).

The plain language of § 31-348 requires an insurer to provide notice to the workers’ compensation commission upon the happening of two events: Either when insurance is effected or when it is canceled. The statute requires the insurer to provide certain information when a policy is effected, including its date of expiration. Section 31-348 does not explicitly state that an insurer must contact the commission again and confirm that the scheduled expiration has occurred. Furthermore, all of the case law interpreting § 31-348 or its predecessors has involved situations in which a party has terminated, or attempted to terminate, a policy prior to its expiration date. See, e.g., Stickney v. Sunlight Construction, Inc., 248 Conn. 754, 730 A.2d 630 (1999); Rossini v. Morganti, 127 Conn. 706, 16 A.2d 285 (1940); Piscitello v. Boscarello, 113 Conn. 128, 154 A. 168 (1931); Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 774 A.2d 992 (2001).

We have had occasion to distinguish between cancellation and nonrenewal in the context of General Statutes § 38a-343, a provision imposing notice requirements on issuers of automobile insurance. In Kane v. American Ins. Co., 52 Conn. App. 497, 503, 725 A.2d 1000 (1999), aff'd, 252 Conn. 113, 743 A.2d 612 (2000), we held that the statutory dictate that an insurer notify an insured of the cancellation of its policy at least forty-five days before that cancellation is effective was not applicable where a policy simply expired. Similarly, our Supreme Court concluded that the statutory notice provision was inapplicable where an insured’s policy was terminated through the operation of a clause in the policy providing for automatic termination in the event that the insured purchased other, similar coverage. Majernicek v. Hartford, Casualty Ins. Co., 240 Conn. 86, 93-96, 688 A.2d 1330 (1997). Those cases instruct that where the date of or event triggering the termination of a policy is known from the inception of that policy, the provision of additional notice is superfluous and, hence, not required.

In Piscitello v. Boscarello, supra, 113 Conn. 130-31, our Supreme Court noted that “[t]he purpose of the statute requiring notice of insurance effected or can-celled to be filed with the board of compensation commissioners is to make an authentic record of the insurance policies in existence, so that any employee or prospective employee may ascertain whether the employer is insured and if so in what company.” In this case, it was established that the purpose of the statute was achieved by the provision to the commissioners of the expiration date of Aetna’s policy when that policy first was effected. Even though no cancellation notice was sent, the commissioner’s records accurately reflected that the Aetna policy no longer was in effect on the date of the plaintiffs injury. There is no evidence that either the defendant or the plaintiff was deceived when Aetna did not verify with the commissioner that the scheduled expiration of its policy had occurred.

Because the plain language of § 31-348 does not require notice in the event of nonrenewal, because case law interpreting a similar statutory provision makes a distinction between cancellation and nonrenewal, and because the purpose of the statute was not thwarted by Aetna’s failure to provide further information to the commission, we conclude that the notice requirement of § 31-348 is not applicable when a policy simply expires and, therefore, that the board correctly applied the law to the facts of this case.

II

The defendant next claims that the board improperly affirmed the decision of the commissioner because ITT Hartford waived the right to contest coverage when, pursuant to § 31-294c (b), it filed a notice contesting liability that did not identify lack of coverage as grounds for the contest. We disagree.

It is undisputed that ITT Hartford’s policy became effective on August 14, 1993, four days after the plaintiffs injury. The plaintiff did not file a workers’ compensation claim until September 29, 1993. On October 5, 1993, ITT Hartford, pursuant to § 31-294c (b), filed a notice, on the defendant’s behalf, of its intention to contest liability (form 43) for the plaintiffs injury.

The completed form 43 did not include the fact that ITT Hartford’s policy with the defendant was not yet in effect on the date of the plaintiffs injury. Instead, as the basis for contesting liability, it referred to appended documentation, specifically to statements from the plaintiffs coworker and the defendant’s president, that raised questions regarding the authenticity of the claim. In June, 1994, ITT Hartford raised the issue of lack of coverage. The defendant argued that § 31-294c (b) required that the claim be made on the form 43 and, because it was not, ITT Hartford had waived its right to assert the defense thereafter. The commissioner and the board disagreed, concluding that the statute did not apply and that ITT Hartford had not waived the right to contest coverage.

“Waiver is the voluntary relinquishment of a known right. It involves the idea of assent, and assent is an act of understanding. . . . Intention to relinquish must appear, but acts and conduct inconsistent with intention to [relinquish] . . . are sufficient. . . . Waiver is a question of fact for the trier.” (Internal quotation marks omitted.) Infante v. Mansfield Construction Co., 47 Conn. App. 530, 538, 706 A.2d 984 (1998). Although our review of the board’s interpretation of § 31-294c (b) is plenary, we accord the board’s construction great weight. Krevis v. Bridgeport, supra, 63 Conn. App. 330.

Section 31-294c (b) and the case law interpreting it impose strict requirements on an employer to timely and specifically inform an injured employee that it will be contesting liability for an injury for which the employee has claimed workers’ compensation benefits. See footnote 7; Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 619-23, 748 A.2d 278 (2000) (employer precluded from contesting liability where notice lacked specificity); Black v. London & Egazarian Associates, Inc., 30 Conn. App. 295, 304-305, 620 A.2d 176 (employer precluded from contesting liability where notice was untimely), cert. denied, 225 Conn. 916, 623 A.2d 1024 (1993). The statute, however, does not mention insurers, their rights to contest coverage or the timing or waiver thereof. Furthermore, the defendant does not point us to, nor does our research disclose, any case in which § 31-294c (b) was held to require that an insurer provide notice to an insured employer.

Our Supreme Court, in discerning the legislative intent behind the notice requirement of General Statutes (Rev. to 1968) § 31-297 (b), now § 31-294c (b), explained that the statute is meant “to ensure (1) that employers would bear the burden of investigating a claim promptly and (2) that employees would be timely apprised of the specific reasons for the denial of their claim.” Menzies v. Fisher, 165 Conn. 338, 343, 334 A.2d 452 (1973). The court noted that the portion of the statute providing for a conclusive presumption of liability in the event of the employer’s failure to provide timely notice was intended “to correct some of the glaring inequities” of the workers’ compensation system, specifically, to remedy the disadvantaged position of the injured employee pursuing a claim. Id., 342.

It is clear, therefore, that the purpose of § 31-294c (b) is to protect employees, not employers. There is no indication that this purpose was thwarted because ITT Hartford did not contest coverage on the form 43. That the plaintiff was not prejudiced is evidenced by the fact that the commissioner found his injury to be fully compensable.

Because § 31-294c (b) does not implicate an insurer’s right to raise the defense of lack of coverage against an employer, we conclude that the board properly found it inapplicable. Furthermore, the purpose and operation of the statute support the board’s conclusion that ITT Hartford, in filing the form 43, did not intend to relinquish its own rights, but rather to protect those of the defendant, to whom it was then providing coverage. The board, therefore, correctly refused to disturb the commissioner’s finding that ITT Hartford had not waived the right to assert thereafter the defense that it was not the defendant’s insurance carrier at the time of the plaintiffs injury.

Ill

The defendant claims last that the board improperly affirmed the decision of the commissioner because ITT Hartford waived the right to contest coverage when it sent the defendant a letter stating that it would represent the defendant at a hearing. We decline to address that claim because it rests on material outside the record.

The following additional facts are relevant to our resolution of that issue. On April 13, 1998, ITT Hartford sent the defendant a letter, advising it that a hearing before the commissioner on the plaintiffs case had been scheduled for April 20, 1998, and that a representative of ITT Hartford would be “present at the hearing to represent ours and your interests in the matter.” A copy of the notice of the hearing was attached to the letter. The April 20, 1998 hearing was the last of three hearings held before the commissioner on the matter of the defendant’s insurance coverage, the results of which are the subject of this appeal. The defendant did not receive the letter until after the close of the hearing, but attached the letter to its posthearing brief. The commissioner’s finding and order did not address the letter.

In its appeal before the board, the defendant attempted to introduce the letter as additional evidence pursuant to § 31-301-9 of the Regulations of Connecticut State Agencies. The board considered that the unsigned letter appeared to be an automatically generated form and noted that, due to its timing, the letter could not have misled the defendant regarding insurance coverage by ITT Hartford. The board, therefore, declined to accept the letter as additional evidence.

The defendant does not attack the board’s evidentiary ruling on appeal, but disregards it and makes a substantive argument on the basis of the contents of the letter. We decline to address that argument because “[i]t is a necessary application of appellate procedure that claims made in briefs must be supported by the record. Furber v. Administrator, 164 Conn. 446, 451, 324 A.2d 254 (1973).” (Internal quotation marks omitted.) State v. Evans, 9 Conn. App. 349, 353, 519 A.2d 73 (1986). “In deciding a case, this court cannot resort to matters extraneous to the formal record, to facts which have not been found and which are not admitted in the pleadings, or to documents and exhibits which are not part of the record.” Id., 354.

Because the defendant’s claim is predicated entirely on a document extraneous to the record, we cannot consider it. Furthermore, because the defendant has not briefed the issue of whether the board’s evidentiary ruling was proper, we decline to review that ruling. See Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 45, 668 A.2d 36 (1996).

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

In this opinion DRANGINIS, J., concurred.

FLYNN, J.,

dissenting. While I concur with the majority that the board’s ruling as to the defendant ITT Hartford Group, Inc., should be affirmed, I respectfully dissent from the opinion of the majority as to the board’s ruling concerning the defendant Aetna Casualty & Surety Company (Aetna), and would reverse the board’s ruling as to it.

The judicial construction of provisions of our Workers’ Compensation Act is guided by long established principles. “[T]he Workers’ Compensation Act is remedial and must be interpreted liberally to achieve its humanitarian purposes.” (Internal quotation marks omitted.) Gil v. Courthouse One, 239 Conn. 676, 682, 687 A.2d 146 (1997). Those general purposes are more specifically carried out by General Statutes § 31-348, the provision at issue in this appeal. Another long-standing principle has been that “workmen’s compensation is a peculiar type of insurance, and ... to every policy each employee of the insured is in a very real sense a party . . . .” Rossini v. Morganti, 127 Conn. 706, 708, 16 A.2d 285 (1940). Consequently, § 31-348 must be interpreted with the principle of protecting the employee in mind even though the dispute on appeal is between the insurer and employer.

I begin by setting forth the statutory scheme by which the provisions of § 31-348 requires compensation insurance companies to report their risks. “The purpose of the statute requiring notice of insurance effected or cancelled to be filed with the board of compensation commissioners is to make an authentic record of the insurance policies in existence, so that any employee or prospective employee may ascertain whether the employer is insured and if so in what company.” Piscitello v. Boscarello, 113 Conn. 128, 130-31, 154 A. 168 (1931). To accomplish that statutory purpose, § 31-348 first requires notice of when a policy goes into effect, to wit: “Every insurance company writing compensation insurance or its duly appointed agent shall report in writing or by other means to the chairman of the Workers’ Compensation Commission, in accordance with rules prescribed by the chairman, the name of the person or corporation insured, including the state, the day on which the policy becomes effective and the date of its expiration, which report shall be made within fifteen days from the date of the policy.” The insurer is then estopped from denying that the terms of the policy extend coverage until the reported expiration date. Rossini v. Morganti, supra, 127 Conn. 708. If such a notice had been filed in this case, the worker for whose benefit the statute exists could have consulted the chairman’s records and determined the expiration date. However, the commissioner made no finding that this initial report had ever been filed as the law requires. A second requirement of § 31-348 mandates how a “cancellation” is to be effected as to “any policy so written and reported.” Section 31-348 provides in pertinent part that “ [t]he cancellation of any policy so written and reported shall not become effective until fifteen days after notice of such cancellation has been filed with the chairman. Any insurance company violating any provision of this section shall be fined not less than one hundred nor more than one thousand dollar’s for each offense.” Under the statutory scheme, no such notice is required before a nonrenewal notice indicating that the policy will not be renewed on its expiration date can become effective. This is so because the employee is able to ascertain from the required original report filed with the commissioner the date on which the policy expires. “As regards employees, the insurer is estopped to deny the truth of the formal record so made by it, whether or not the particular employee whose rights are in question examined the files where such records are kept.” Piscitello v. Boscarello, supra, 131.

What was the formal record created by Aetna here? The commissioner made no finding that Aetna had filed a report of the policy’s effective date with the chairman, as the law requires. The commissioner made no finding that Aetna had filed notice of the date of expiration, before which it would be estopped to deny coverage. Although the commissioner noted Aetna’s argument and expert testimony that coverage ended on February 26, 1993, a commissioner’s recital of evidence or arguments is no substitute for findings of fact. Grabowski v. Miskell, 97 Conn. 76, 78, 115 A. 691 (1921) (discussing our Supreme Court’s “repeated injunction” against reciting evidence in lieu of fact-finding); Orsinie v. Torrance, 96 Conn. 352, 354, 113 A. 924 (1921); Marchiatello v. Lynch Realty Co., 94 Conn. 260, 262, 108 A. 799 (1919) C‘[w]e cannot find the facts from [recited] testimony and hence we cannot use it in any degree”). We are left to wonder whether Aetna created the required formal record and, if so, what that record was. The commissioner simply concluded that a document sent by Aetna to the insured was a “notice of nonrenewal” without finding the subordinate facts that legally and logically would justify that conclusion. “[T]he commissioner ought to decide explicitly every material issue of fact on which his conclusions are based.” Orsinie v. Torrance, supra, 354.

I turn to the commissioner’s finding that a nonrenewal notice, and not a cancellation notice, had been sent by Aetna to the insured. This simply is clearly erroneous. The undisputed record before the commissioner included the following: Aetna created and sent a document to the insured that stated that it was a cancellation of Aetna’s policy with the insured. The document contained a marked check box that stated: “We are cancelling this policy. Your insurance will cease on the date of cancellation shown above.” The document also contained a separate check box for indicating that the document is a nonrenewal, but that box was left blank. The form did, as the majority holds, include the phrase “notice of cancellation or nonrenewal.” However, at the top, in bold print, before setting out the check boxes designating the kind of notice being given, the document reads: “The following is applicable only if marked.” Thus, since “nonrenewal” was not checked, the form unequivocally stated to the insured that it was a cancellation notice. Having chosen to issue a cancellation rather than a nonrenewal, Aetna was required to comply with statutory requirements for notice before its cancellation could become effective. Although the majority states that this cancellation was a “clerical error,” the commissioner made no such finding, and it is not within our competency on appeal to find facts. Aetna offered no testimony of an employee indicating that he or she had made such an error. The majority points to a blank space on the form where the cancellation date could have been entered, presumably as a source of ambiguity, which they then choose to resolve in favor of the insurance company. Although I disagree that this is any source of ambiguity, this resolution of purported ambiguity in the notice runs against the rules established in our case law. “Any uncertainty as to the meaning of a notice from an insurer to its insured must be resolved against the insurer and in favor of the insured.” Travelers Ins. Co. v. Hendrickson, 1 Conn. App. 409, 412, 472 A.2d 356 (1984).

One subordinate factual finding, among several, that the commissioner should have made before concluding that an insurance company has not violated the cancellation provisions of § 31-348 is the finding that the initial notice provisions had been followed. The qualifying phrase, “any policy so written and reported,” in the provision describing proper cancellation can indicate nothing less by plain meaning. A restrictive reading of that phrase to mean that only policies properly recorded are subject to the cancellation notice safeguards would yield a result never intended in the statute. Suffice it to say that the puipose of § 31-348 is not to reward noncomplying insurers with the ability to blindside employees by canceling without the usual record notice. As stressed earlier, our Workers’ Compensation Act is to be construed liberally to achieve its humanitarian purpose of protecting the employee. A reading of the phrase to mean that compliance with the formal record notice requirements is immaterial to cancellation would render the phrase surplusage and also create a perverse incentive not to record the terms of the policy. Under § 31-348, the commissioner is required to make the factual finding that the insurer has honored all of the formal record requirements before determining whether a cancellation has been effected properly. The commissioner did not. Thus, his determination that Aetna was not liable is a conclusion “illegally or unreasonably drawn” from insufficient subordinate facts. Cf. Adzima v. UAC/Norden Division, 177 Conn. 107, 117—18, 411 A.2d 924 (1979).

The term “cancellation” is normally used in the insurance business to signify the termination of “a policy prior to its expiration . . . .” 2 G. Couch, Insurance (3d Ed. 1995) § 30:1, p. 30-2. In contrast, the term “nonrenewal” generally is applied when an insurer elects not to continue the policy at the expiration of its ordinary term. See id., § 29:1 et seq.

The sole indicia of the date of expiration in the record was expert testimonial evidence from a state investigator that he had checked computer records of the National Council on Compensation Insurance, Inc. (NCCI), and had found that an Aetna policy had expired on February 26, 1993. The commissioner must not rely on testimony as to a report from an NCCI database, rather than a formal record of an insurer’s direct report in the commission chairman’s files. The ease with which he could assess this secure record and the relative unreliability of witness testimony about an NCCI database renders such reliance unjustifiable. The date on record itself, as unreliably indicated by the testimony of an NCCI report, is insufficient as a matter of law to determine the date of expiration of the policy if it is to be used against the insured. The purpose of the central notice filing provisions in § 31-348 is to protect the insured employee against, and to estop the insurer from making, a denial of coverage if the dates on record indicate coverage. In sum, the commissioner’s conclusion was illegally and unreasonably drawn from insufficient subordinate factual findings. As noted by the majority, “the conclusions drawn” by the commissioner will not stand if “they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Adzima v. UAC/Norden Division, supra, 177 Conn. 117-18.

I respectfully dissent from the opinion of the majority.

       The named defendant contracted, or attempted to contract, for workers’ compensation insurance coverage with three separate insurance companies during the time period implicated in this appeal. Each insurer also was named as a defendant in the proceedings before the workers’ compensation commissioner and the workers’ compensation review board on appeal. To avoid confusion, we will refer to the various insurers by name and to Barnes Page Wire Products, Inc., as the defendant. The defendant’s first claim on appeal concerns Aetna Casualty & Surety Company (Aetna). The defendant’s second and third claims concern ITT Hartford Group, Inc. (ITT Hartford). The board’s decision regarding the third insurer, Ohio Casualty Group Insurance Company (Ohio Casualty), is not at issue in this appeal. The plaintiff, Michael DiBello, is not a party to this appeal.

       In April, 1996, Aetna Casualty & Surety Company was acquired by Travelers Insurance Company.

       General Statutes § 31-348 provides in relevant part that “[e]very insurance company writing compensation insurance . . . shall report ... to the chairman of the Workers’ Compensation Commission ... the name of the person or corporation insured, including the state, the day on which the policy becomes effective and the date of its expiration, which report shall be made within fifteen days from the date of the policy. The cancellation of any policy so written and reported shall not become effective until fifteen days after notice of such cancellation has been filed with the chairman. . . ." (Emphasis added.)

       Although there was a clerical error on the “Notice of Cancellation or Nonrenewal”-, (emphasis added); that may have weighed in favor of a finding that the notice was one of cancellation, other information on the notice supported the commissioner’s finding that it was one of nonrenewal. Furthermore, there was no indication that the defendant was misled by the notice in that it sought to secure coverage from another insurer to commence upon the expiration of the Aetna policy. Finally, the commissioner had before him a printout containing entries for the defendant from and testimony of a state insurance investigator regarding a National Council on Compensation Insurance, Inc. (NCCI), database, which is “the official notification unit for the state of Connecticut Workers’ Compensation Commission.” The “commission has contracted with NCCI to receive [General Statutes § 31-348] notices on behalf of the chairman”; Thibodeau v. Rizzitelli, 3373 CRB-4-96-7 (October 14, 1997); and, at least some of the time, such notices are transmitted via magnetic tape rather than by paper records. The NCCI database reflected that on January 23, 1992, NCCI received notification that Aetna had issued a policy to the defendant that was effective February 26, 1992, and expired on February 26, 1993, i.e., the date inscribed on the “Notice of Cancellation or Nonrenewal.”
      The commissioner, therefore, contrary to the assertion made by the dissent, had before him ample circumstantial evidence from which he permissibly could infer; see Chappell v. Manafort Bros., Inc., supra, 63 Conn. App. 633; that the communication from Aetna to the defendant was a notice of nonrenewal. Although the commissioner in his finding and order did not detail explicitly each subordinate finding, we note that § 31-301-3 of the Regulations of Connecticut State Agencies, promulgated subsequent to the case law cited by the dissent, provides in relevant part that “[t]he finding of the commissioner should contain only the ultimate relevant and material facts essential to the case in hand and found by him, together with a statement of his conclusions and the claims of law made by the parties”; (emphasis added); and does not require that the commissioner’s finding include, as well, all underlying facts.

       Perhaps in recognition of the high burden it must overcome to disturb the commissioner’s factual finding on appeal; see Chappell v. Manafort

        Bros., Inc., supra, 63 Conn. App. 633; the defendant chooses not to assume that burden and instead takes the approach of repeatedly misstating the finding in its appellate brief. The defendant, no less than eight times, states that the commissioner found that the December 3, 1992 notice from Aetna was one of cancellation and not one of nonrenewal. As evidenced by the commissioner’s finding and order, and its denial of the pertinent portions of the defendant’s motion to correct, the commissioner found precisely the opposite.

       General Statutes § 38a-343 (a) provides in relevant part that “[n]o notice of cancellation of policy . . . may be effective unless sent ... to the named insured at least forty-five days before the effective date of cancellation . . . .”

       General Statutes § 31-294c (b) provides in relevant part that “[wjhenever liability to pay compensation is contested by the employer, he shall file with the commissioner, on or before the twenty-eighth day after he has received a written notice of claim, a notice . . . stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged iryury or death and the specific grounds on which the right to compensation is contested. . . . [A]n employer who fails to contest liability for an alleged injury or death on or before the twenty-eighth day after receiving a written notice of claim and who fails to commence payment for the alleged injury or death on or before such twenty-eighth day, shall be

        conclusively presumed to have accepted the compensability of the alleged injury or death.” (Emphasis added.)

       The hearings regarding the compensability of the plaintiffs injury commenced about two months later. The hearings regarding insurance coverage commenced more than three years later.

       The other two hearings were held on August 12, 1997, and January 8, 1998.

       Section 31-301-9 of the Regulations of Connecticut State Agencies provides: “If any party to an appeal shall allege that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, he shall by written motion request an opportunity to present such evidence or testimony to the compensation review division, indicating in such motion the nature of such evidence or testimony, the basis of the claim of materiality, and the reasons why it was not presented in the proceedings before the commissioner. The compensation review division may act on such motion with or without a hearing, and if justice so requires may order a certified copy of the evidence for the use of the employer, the employee or both, and such certified copy shall be made a part of the record on such appeal.”

       General Statutes § 31-348 provides for a fine of up to $1000 per violation if an insurance company fails to report a date of expiration for a workers’ compensation policy. Thus, failure to comply with § 31-348 is treated as an “offense” under the Penal Code of our General Statutes. See General Statutes § 53a-24.

       Despite the requirements of General Statutes § 4-167, requiring the adoption of regulations with respect to an agency’s organization, operation, methods and procedures, I find no such regulation in which the chairman of the workers’ compensation commission designates NCCI to be his recipient for notices or reports that he is obligated to accept under the provisions of General Statutes § 31-348.

       General Statutes § 31-348 provides inrelevantpartthat“[e]veryinsurance company writing compensation insurance . . . shall report ... to the chairman of the Workers’ Compensation Commission ... the day on which the policy becomes effective and the date of its expiration . . . .” It does not provide for reports by the insurer to a third party.
      The majority opines that the commissioner had ample circumstantial evidence from which he could infer that the notice given by the insurer was a notice of nonrenewal despite the fact that the form used stated that it was a cancellation and that it was not a nonrenewal. It supports this view on the basis that the record indicates that the NCCI receives notices on behalf of the chairman under contract with the commission. However, the statute requires, not that an insurer like Aetna notify a database operator in some different state, but instead that Aetna file a report with the chairman of the commission. There simply is no evidence that it did so and nothing from which this could be inferred. Our Supreme Court has recognized the need for strict compliance with this statute to protect the worker. Piscitello v. Boscarello, supra, 113 Conn. 130-31.
      The case of Thibodeau v. Rizzitelli, 3373 CRB-4-96-7 (October 14, 1997), provides a good example of why the direct reporting requirement of the insurer to the chairman of the commission, for which the General Assembly

        wisely provided, should be upheld by courts of law. In Thibodeau, the insurer generated a report to NCCI on August 8, 1994, on magnetic tape to reinstate a policy with an effective date of May 15, 1994, almost three months in the past. The next day, on August, 9, 1994, the insurer generated a report canceling the same policy, with an effective date of cancellation identical to the date of reinstatement, May 15, 1994. This was all done purposely “so that the agent’s commission could be adjusted” by manipulating the corporation’s computers. This demonstrates the confusion and litigation that can result from reliance on such a database to determine what policy is in effect on a particular date.


text:
    EARL RICHARDS, JR. v. LOIS RICHARDS
    (AC 21348)
    Schaller, Mihalakos and O’Connell, Js.
    Submitted on briefs September 12
    officially released December 18, 2001

      David M. Wattman filed a brief for the appellant (defendant).

      Howard C. Eckenrode filed a brief for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant, Lois Richards, appeals from the judgment of the trial court ordering a partition by sale of the parties’ marital residence. The defendant claims on appeal that the court improperly failed to apply the doctrine of res judicata as a bar to the plaintiffs partition action because the Superior Court’s prior dissolution judgment already had divided the marital property. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. The plaintiff, Earl Richards, Jr., and the defendant were separated after a judgment of legal separation. The separation was later converted into a judgment of dissolution pursuant to General Statutes § 46b-65 (b). The dissolution judgment contained two provisions relating to the marital residence. The first provided that the parties would retain their one-half interests in the real property as tenants in common without the right of survivorship. The second provision ordered the plaintiff and the defendant to share equally in the expenses of operating and maintaining the residence as long as they jointly owned it. It also provided that the court would retain jurisdiction to enforce that provision.

The plaintiff subsequently commenced an action to obtain a partition of the marital residence. In response, the defendant filed a special defense, asserting that the plaintiffs claim was barred by res judicata and collateral estoppel based on the dissolution judgment. In its memorandum of decision, the court determined that the judgment was not intended to prohibit partition. It rendered judgment for the plaintiff and ordered that the residence be partitioned by sale. This appeal followed.

The defendant claims that the plaintiffs partition action is barred by the doctrine of res judicata because the division of the marital home is the same claim that was litigated in the dissolution proceeding. She asserts that because the parties had the opportunity to address the division of marital property in the dissolution litigation, the plaintiff is barred by res judicata from seeking a partition of the jointly owned residence.

“The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. ... If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made.” (Internal quotation marks omitted.) Daw v. Zoning Board of Appeals, 63 Conn. App. 176, 183-84, 772 A.2d 755, cert. denied, 256 Conn. 931, 776 A.2d 1145 (2001). The applicability of res judicata raises a question of law that is subject to our plenary review. Linden Condominium Assn., Inc. v. McKenna, 247 Conn. 575, 594, 726 A.2d 502 (1999). We therefore must determine whether the trial court’s decision is legally and logically correct. See Bartomeli v. Bartomeli, 65 Conn. App. 408, 412, 783 A.2d 1050 (2001).

In the present case, the provision in the dissolution judgment ordering the parties to maintain the marital residence as long as they jointly owned it is pivotal to our disposition of the defendant’s claim. It is axiomatic that in applying the doctrine of res judicata we remain cognizant that “[t]he scope of matters precluded necessarily depends on what has occurred in the former adjudication.” (Internal quotation marks omitted.) Milford v. Andresakis, 52 Conn. App. 454, 463, 726 A.2d 1170, cert. denied, 248 Conn. 922, 733 A.2d 845 (1999).

In its memorandum of decision, the trial court implicitly found that the doctrine of res judicata did not apply to the plaintiffs action when it determined that the partition action was not barred by the dissolution judgment. This decision is legally and logically correct. As a matter of plain meaning and common parlance, the phrase “as long as they jointly own it” contemplates the possibility of a partition, sale, or other disposition at some time in the future subsequent to the entry of the dissolution judgment. It appears that when the court fashioned the dissolution judgment, it left open the possibility of future action with regard to the marital residence. This interpretation also makes sense in the context of the dissolution, as the court was likely anticipating a situation in which the parties might not continue as tenants in common.

Because the dissolution judgment did not preclude, but rather contemplated, the possibility of a subsequent partition, the doctrine of res judicata does not apply. Moreover, the doctrine of res judicata is not applicable to the action for partition here because the plaintiff is not seeking to relitigate or reallocate the apportionment of the marital property. We conclude that the trial court’s determination that res judicata did not bar the plaintiffs partition action is correct.

The judgment is affirmed.


author: FLYNN, J.

text:
    NANIK KARNANE v. SAKS FIFTH AVENUE ET AL.
    (AC 21417)
    Dranginis, Flynn and Daly, Js.
    Argued October 15
    officially released December 18, 2001

      Michael M. Buonopane, for the appellants (named defendant et al.).

      Michelle D. Truglia, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellee (defendant second injury fund).
   Opinion

FLYNN, J.

The defendants, Saks Fifth Avenue (Saks) and its insurer, AIG Claims Services, Inc. (AIG), appeal from the decision of the workers’ compensation review board (board) reversing the decision of the workers’ compensation commissioner for the seventh district (commissioner) transferring liability for the payment of disability benefits awarded to the plaintiff, Nanik Kamane, to the defendant second injury fund (fund). The principal issue to be decided in this appeal is whether the board properly determined that Saks and AIG did not timely file notice to transfer liability to the fund pursuant to General Statutes (Rev. to 1993) § 31-349 (b), as amended by Public Acts 1993, No. 93-429, § 2 (P.A. 93-429). We conclude that Saks and AIG failed to notify the fund in a timely manner and, therefore, we affirm the decision of the board.

Certain underlying facts found by the commissioner are not in dispute. On July 16, 1993, the plaintiff, who is not a party to this appeal, was employed as a salesperson by Saks and was working at its Stamford store when he slipped and fell, sustaining injuries to his right shoulder and knee. For the first eight and one-half weeks after the fall, the plaintiff was unaware of the severity of his injuries and self-medicated with Tylenol for his pain. In actuality, he had suffered a tom rotator cuff in his shoulder and tom medial meniscus in his knee. The plaintiff did not seek medical care for his injuries until September 14,1993. He continued to work at his job from the date he was injured until March 28, 1994, when he underwent surgeries for the injuries to both his shoulder and knee. The plaintiff received temporary total disability benefits from March 28, 1994, through August 26, 1996. He did not, thereafter, return to his job at Saks, having retired upon reaching the age of sixty-five. Saks and AIG first provided notice of their intent to transfer liability to the fund on May 30, 1995.

After a formal hearing, the commissioner found, in his revised findings and award, that there was no medically documented period of disability for the plaintiff between July 17, 1993, and March 28,1994, and, accordingly, the period of disability that began the notice period for purposes of transferring liability under § 31-349 (b) began on March 28, 1994. The commissioner further found that the May 30, 1995 notice of transfer was timely because, pursuant to the notice requirements of No. 95-277 of the 1995 Public Acts (P.A. 95-277), the notice deadline was June 28, 1996. As such, the commissioner ordered liability transferred to the fund. The fund filed a petition for review by the board. The board reversed the decision of the commissioner. It concluded that the commissioner improperly calculated the notice deadline under the 1995 version of the statute, rather than under the 1993 version, and also improperly determined that March 28, 1994, the date of the plaintiffs surgeries, was the date that disability began. It further concluded that liability should not have been transferred to the fund because Saks and AIG did not provide timely notice pursuant to the applicable 1993 version of § 31-349 (b). This appeal followed.

Although Saks and AIG now concede that the 1993 version of § 31-349 (b) governs their timeliness claim and that the board was correct in concluding that the commissioner improperly applied the 1995 version, they nonetheless contend that the commissioner’s ultimate decision that the notice was timely should stand. They claim that the commissioner’s erroneous application of the notice requirements of P. A. 95-277 should not negate his conclusion that notice was timely because their May 30, 1995 notice was timely under either version of the statute if the notice period is calculated using the March 28, 1994 date as the date that disability began. Specifically, they contend that the decision of the board was improper because the commissioner’s conclusion that there was no medically documented period of disability until March 28, 1994, was adequately supported by evidence in the record and that it was for the commissioner, and not the board, to assess the credibility of the medical evidence presented at the hearing. They also claim that even if this court determines that the disability of the plaintiff began sometime before March 28, 1994, the date of his surgeries, the earliest that the disability could have begun was on September 14,1993, the date when he first sought treatment because there could be no determination regarding his disability until he was actually seen by a physician.

The fund disputes the commissioner’s finding that “there is no medically documented period of disability of the plaintiff between July 17, 1993, and March 28, 1994,” and takes strong exception to the finding that “[a]s a result thereof, the period of disability which begins the notice period is March 28, 1994.”

We first note our standard of review. “[T]he power and duty of determining the facts rest on the commissioner, the trier of facts. . . . The conclusions drawn by him 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.) Thompson v. Roach, 52 Conn. App. 819, 824, 728 A.2d 524, cert. denied, 249 Conn. 911, 733 A.2d 227 (1999).

Our analysis begins with a review of the law pertaining to the second injury fund. The second injury fund is a creature of statute and was “established by the legislature ... to encourage employers to hire potential employees with preexisting disabilities or injuries.” Cece v. Felix Industries, Inc., 248 Conn. 457, 462-63, 728 A.2d 505 (1999). That legislation permits an employer to limit its liability for making workers’ compensation payments to a worker who sustains some injury during the course of his employment, and who also has sustained some prior first injury that makes the second job related injury “materially and substantially greater” than that which would have otherwise resulted had there not been the prior injury. General Statutes § 31-349 (a). After the employer has paid benefits for the second injury for a period of time, the employer may move to shift to the fund its liability to make payments of benefits to the employee, provided the employer or its insurer gives a timely notice, as provided in § 31-349 (b).

We now turn to the claim by Saks and AIG that they gave timely notice of their intent to transfer liability to the fund pursuant to General Statutes (Rev. to 1993) § 31-349 (b). Saks and AIG gave notice to the fund on May 30, 1995. Section 31-349 (b) requires that as a condition precedent to the employer’s transfer of liability to the fund for an employee’s disability, either the employer or its insurer must first provide notice of its intent to transfer liability to the fund no earlier than one year and no later than ninety days before the expiration of the first 104 weeks of a plaintiffs disability. In the present case, if the period of disability commenced on the day of the plaintiffs March 28, 1994 shoulder and knee surgeries, as the commissioner found, then statutory notice to transfer liability was due between March 27, 1995, and December 26, 1995. Under that interpretation of when disability commenced, the May 30, 1995 notice given to the fund by Saks and AIG was timely. If the period of disability commenced on September 14,1993, the day of the plaintiffs first medical visit, as was argued by Saks and AIG, then statutory notice was due between September 12, 1994, and June 13, 1995. Under that interpretation, the May 30, 1995 notice also was timely. In contrast, if disability actually commenced on July 16, 1993, the date of injury, as the board concluded, then the commissioner was required to find that the deadline for giving notice was April 14, 1995. Under that interpretation, the May 30,1995 notice was untimely.

“The issue of timeliness centers on the meaning of the word ‘disabled’ contained in § 31-349.” Karutz v. Feinstein & Herman, P.C., 59 Conn. App. 565, 569, 757 A.2d 680, cert. denied, 254 Conn. 949, 762 A.2d 901 (2000). Although the terms “disabled” and “disability” are not defined in the workers’ compensation statutes, recent decisions of this court and our Supreme Court have established the meaning of “disability” for purposes of § 31-349. In Karutz, we held that “disability” refers to a plaintiffs physical impairment and that “a person can be disabled for the purposes of § 31-349 even though he or she can carry on all the facets of his or her employment. The test is whether a claimant is physically impaired, not whether there exists a de facto inability to earn a wage.” Id., 570; see also Williams v. Best Cleaners, Inc., 237 Conn. 490, 498, 677 A.2d 1356 (1996) (“disability” refers to degree of medical impairment for purposes of § 31-349). Our Supreme Court has held that “the phrase ‘one-hundred-four-week period’ [contained in § 31-349 (b)] refers to the first one hundred four weeks of the plaintiffs disability, not to the number of weeks the plaintiffs employer has paid out-of-pocket benefits.” Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 393, 618 A.2d 1340 (1993). Thus, under the holdings in Karutz and Vaillancourt, a plaintiffs “disability” begins, for purposes of § 31-349 (b), when he or she experiences some physical impairment and not when the plaintiff becomes unable to work or begins to receive disability benefit payments.

With those definitions of “disability” in mind, we turn to the decision of the commissioner. In his revised findings, the commissioner included findings that the plaintiff continued to work at Saks until the morning of his surgery, that he received temporary total disability payments and that he received those payments from the date of the surgery onward. Based in part on those findings, the commissioner determined that the plaintiffs period of “disability” began to run on the date of his surgery, March 28, 1994. We conclude that under Vaillancourt and Karutz, those factual findings are immaterial in determining when the plaintiffs disability commenced and indicate that the commissioner improperly relied on those facts in reaching his decision.

Furthermore, § 31-301-3 of the Regulations of Connecticut State Agencies provides in relevant part: “The finding of the commissioner should contain only the ultimate relevant and material facts essential to the case in hand and found by him, together with a statement of his conclusions and the claims of law made by the parties. . . .” Pursuant to the holdings of Karutz and Vaillancourt, the relevant and material facts are those that reflect when the plaintiff became physically impaired. Clearly, under Karutz and Vaillancourt, the commissioner’s inclusions of fact concerning when the plaintiff stopped work and when the plaintiff actually received disability payments were not material facts that were essential to determining when “disability” commenced, and demonstrate that the commissioner’s conclusion that “disability” did not occur until the date of surgery was the result of a misapplication of the law.

Moreover, although the claim by Saks and AIG that the commissioner’s determination that the date that the plaintiff underwent surgeries to correct his injuries began the disability period was supported by evidence in the record and was reasonable, we agree with the board’s conclusion that it was unreasonable in light of the commissioner’s relevant and material findings of fact, the medical evidence presented at the hearing and the applicable law.

Although it was reasonable to conclude that the plaintiff was not ready to return to work or engage in other of life’s normal activities on the day that his surgeons put down their knives and finished their suturing, it was not reasonable to conclude, as the commissioner did, that the day of the surgery was the first day of the plaintiffs impairment and disability. The following revised findings of the commissioner are consistent with the July 16,1993 date of injury being the date when the plaintiffs impairment began. First, the commissioner found that the plaintiffs injuries to both his right shoulder and knee occurred on July 16, 1993. Second, he found that the plaintiff had experienced pain for the first eight and one-half weeks after he sustained those injuries for which he self-medicated, and that he was not aware of the seriousness of the injuries until he sought treatment with his physician, Nicholas V. Polifroni. Third, the commissioner found that the plaintiff underwent surgeries related to those injuries on March 28, 1994. Those findings are consistent with a physical impairment of parts of the body occurring on July 16, 1993, and are not consistent with an impairment commencing on the date of surgical repair of those injuries some eight months later.

We also are not persuaded by the claim by Saks and AIG that the earliest time that the plaintiffs disability could have occurred was September 14, 1993, when he was first treated for his injuries and when medical documentation of those injuries began. There were abundant and uncontradicted medical records that were consistent with the date of impairment occurring on the date of the injury. From that date forward, the plaintiff described initial pain, was required to rest during the workday and had to have coworkers at Saks perform the parts of his job that he was unable to undertake.

A physician can opine about the etiology of occupational disease or physical impairment even though he or she did not examine the patient on the date that the disability first occurred or the injury was first sustained. Polifroni testified that the plaintiff was medically disabled prior to the plaintiffs first visit to him. A second physician, Craig Foster, found that the plaintiffs shoulder and knee were injured in the July 16, 1993 slip and fall, and that since that time the plaintiff suffered from chronic symptomatic shoulder discomfort related to his fall. Also, there was additional medical documentation that described a continuing course of treatment and evaluation of the plaintiffs condition until surgical intervention occurred. Moreover, the commissioner made no finding indicating that any of that evidence was unworthy of credit. The record contains no evidence that indicates that the plaintiff experienced any subsequent trauma or that some other event had an impact on the extent of his injuries after his fall.

We conclude that the commissioner’s finding that the plaintiffs disability, which Karutz v. Feinstein & Herman, P.C., supra, 59 Conn. App. 567, defines as physical impairment, did not occur until March 28, 1994, is wholly unsupported by the evidence. Reason tells us, in light of the commissioner’s findings and the overwhelming medical evidence of impairment commencing on July 16, 1993, that the impairment at issue in the present case, resulting from a tom rotator cuff and tom medial meniscus, occurred on July 16, 1993, as the board concluded and not on March 28, 1994, as the commissioner found. Accordingly, we affirm the decision of the board.

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

In this opinion the other judges concurred.

       General Statutes (Rev. to 1993) § 31-349 (b), as amended by Public Acts 1993, No. 93-429, § 2, provides in relevant part: “As a condition precedent to the liability of the second injury fund, the employer or his insurance carrier shall, no earlier than one year and no later than ninety days before the expiration of the first one hundred four weeks of disability, notify the custodian of the second injury fund of the pending case . . . .”

       On September 22,1995, Saks and AIG reissued notice to the fund pursuant to General Statutes (Rev. to 1995) § 31-349 (e), as amended by Public Acts 1995, No. 95-277, § 3, which provides in relevant part: “All claims for transfer of injuries for which the fund has been notified prior to July 1, 1995, shall be deemed withdrawn with prejudice, unless the employer or its insurer notifies the custodian of the fund by certified mail prior to October 1, 1995, of its intention to pursue transfer pursuant to the provisions of this section. . . .”

       Under the requirements of General Statutes (Rev. to 1995) § 31-349 (b), as amended by Public Acts 1995, No. 95-277, § 3, the employer or its insurer is required to notify the fund “no later than three calendar years after the date of iiyury or no later than ninety days after completion of payments for the first one hundred and four weeks of disability, whichever is earlier, of its intent to transfer liability for the claim . . . .” (Emphasis added.) Under that version of § 31-349 (b), Saks and AIG would have had 180 additional days in which to provide notice of their intent to transfer liability to the fund.

       We note that the record shows that the commissioner’s initial and unrevised findings and award contained a “discussion” section, in which the commissioner expressed his strong opinion that our Supreme Court’s ruling in Vaillancourt was unwise. Our Supreme Court’s decision in Vaillancourt is, however, controlling. Just as “[w]e are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them”; (internal quotation marks omitted) State v. Thomas, 62 Conn. App. 356, 364, 772 A.2d 611, cert. denied, 256 Conn. 912, 772 A.2d 1125 (2001); so, too, is the commissioner.


text:
    EDWARD R. ROY v. COMMISSIONER OF MOTOR VEHICLES
    (AC 20963)
    Lavery, C. J., and Schaller and Daly, Js.

      Submitted on briefs November 1
    officially released December 18, 2001

      Jeffrey D. Brownstein filed a brief for the appellant (plaintiff).

      Richard Blumenthal, attorney general, and Priscilla J. Green, assistant attorney general, filed a brief for the appellee (defendant).
   Opinion,

DALY, J.

The plaintiff, Edward R. Roy, appeals from the judgment of the trial court dismissing his appeal from the decision of the commissioner of motor vehicles (commissioner) suspending his motor vehicle operator’s license (license) for six months for refusing to submit to a Breathalyzer test pursuant to General Statutes (Rev. to 1999) § 14-227b (a), as amended by Public Acts 1999, No. 99-255, § 2 (P.A. 99-255). On appeal, the plaintiff claims that the court improperly upheld the hearing officer’s decision although the hearing officer improperly (1) admitted into evidence and relied on a deficient A-44 arrest form, and (2) utilized the substantial evidence standard of proof. We affirm the judgment of the trial court.

The following facts are relevant to the plaintiffs appeal. On January 1, 2000, the plaintiff was arrested and charged with operating a motor vehicle under the influence of liquor following a single vehicle accident. Police on the scene detected the odor of alcohol on the plaintiffs breath, and the plaintiff refused to submit to any sobriety tests. The department of motor vehicles informed the plaintiff that his license would be suspended for a period of six months and that he had a right to a hearing before the suspension would take effect. During the hearing, the plaintiff objected to the admission into evidence of the A-44 form on the ground that it failed to indicate that he had operated his motor vehicle on a public road. The hearing officer overruled the plaintiffs objection and admitted the A-44 form into evidence. At the conclusion of the hearing, the commissioner, through the hearing officer, suspended the plaintiffs license for a period of six months. Pursuant to General Statutes § 4-183, the plaintiff appealed from the hearing officer’s decision to the trial court, which dismissed the plaintiffs appeal. This appeal followed.

I

The plaintiffs first claim is that the hearing officer improperly admitted into evidence a defective A-44 form and its attachments. The plaintiff claims that the A-44 form was inadmissible because the police officer who completed it failed to mark a box stating that the plaintiff had been operating his vehicle on a public road. We are not persuaded.

“Administrative tribunals are not strictly bound by the rules of evidence ... so long as the evidence is reliable and probative.” (Internal quotation marks omitted.) Bialowas v. Commissioner of Motor Vehicles, 44 Conn. App. 702, 712, 692 A.2d 834 (1997); see also 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 6, p. 5. It is within the province of the hearing officer to determine the credibility of evidence. Pizzo v. Commissioner of Motor Vehicles, 62 Conn. App. 571, 579, 771 A.2d 273 (2001). “The plaintiff bears the burden of demonstrating that a hearing officer’s evidentiary ruling is arbitrary, illegal or an abuse of discretion.” (Internal quotation marks omitted.) Paquette v. Hadley, 45 Conn. App. 577, 580, 697 A.2d 691 (1997).

After thoroughly reviewing the record and briefs, we conclude that the hearing officer did not abuse his discretion in admitting the A-44 form into evidence. General Statutes (Rev. to 1999) § 14-227b (c), as amended by § 2 of P.A. 99-255, requires the police to complete a written report on a form approved by the commissioner when the person arrested refuses to submit to a sobriety test or when the result of such a test reveals a blood alcohol level exceeding the legal limit. In this case, the A-44 form was completed as required by the arresting officer, but he failed to include a check in the box stating that the plaintiff had been operating his vehicle on a public road. That omission, however, does not mean that the form was deficient for purposes of § 14-227b (c).

“Compliance with § 14-227b (c) is designed to provide sufficient indicia of reliability so that the report can be introduced in evidence as an exception to the hearsay rule, especially in license suspension proceedings, without the necessity of producing the arresting officer. ... If the report did not include such indicia of reliability, the report would not be admissible even before an administrative tribunal of this type.” (Citation omitted; internal quotation marks omitted.) Bialowas v. Commissioner of Motor Vehicles, supra, 44 Conn. App. 712.

The report to be completed by police officers in accordance with § 14-227b (c) does not require the police to check a box setting forth that the person arrested was operating on a public road. Rather, the statute requires that the report set forth the officer’s belief that there was probable cause to arrest, which includes operation on a public road. The officer in this case did that by describing the road in his attachments to the A-44 form, and the commissioner did not abuse his discretion in determining that the form, along with its accompanying documents, was sufficiently reliable to permit their admission into evidence.

The plaintiffs reliance on Volck v. Muzio, 204 Conn. 507, 529 A.2d 177 (1987), and Mikolinski v. Commissioner of Motor Vehicles, 55 Conn. App. 691, 740 A.2d 885 (1999), cert. denied, 252 Conn. 922, 747 A.2d 518 (2000), is misplaced. The plaintiff claims that the holdings in Volck and Mikolinski required the hearing officer to exclude the A-44 form because it did not comply with § 14-227b (c). Specifically, the plaintiff relies on language in Volck that permitted the admission into evidence of a police report that did not comply with § 14-227b (c) because the opposing party did not object to its admission. The plaintiff surmises that because he objected to the admission of the defective A-44 form at the hearing, it should have been excluded. In both Volck and Mikolinski, however, the decisions to admit the noncomplying documents into evidence were upheld because they were determined to be sufficiently reliable.

The hearing officer in this case had ample evidence to determine that the incomplete A-44 form was reliable and probative. Hence, it was not an abuse of discretion when the hearing officer admitted the documents into evidence and relied on them when making his decision.

II

The plaintiffs second claim on appeal is that the hearing officer used the wrong standard of proof during the license suspension hearing. The plaintiff argues that during a license suspension hearing, the hearing officer is required to use the preponderance of the evidence standard as opposed to the substantial evidence standard. This claim is without merit.

Section 14-227b-17 (b) of the Regulations of Connecticut State Agencies provides that “[t]he findings required to be made at the hearing in accordance with subsection (f) of Section 14-227b of the General Statutes shall be based on substantial evidence when the record is considered as a whole.” (Emphasis added.) “It is well established that an administrative agency’s regulations are presumed valid and, unless they are shown to be inconsistent with the authorizing statute, they have the force and effect of a statute.” (Internal quotation marks omitted.) Cameron v. Alander, 39 Conn. App. 216, 220, 664 A.2d 332, cert. denied, 235 Conn. 924, 666 A.2d 1185 (1995). The regulation explicitly states the burden of proof to be utilized during a license suspension hearing, and it is in no way inconsistent with the authorizing statute. The plaintiff offers no authority to support his claim that the appropriate burden should not be the substantial evidence standard. See 1 B. Holden & J. Daly, supra, § 61f, pp. 397-98. In fight of the department of motor vehicles regulation, a hearing officer’s decision must be based on substantial evidence when viewing the entire record. The plaintiffs claim that the standard should be proof by a preponderance of the evidence has no basis in law.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1999) § 14-227b (a), as amended by § 2 of P.A. 99-255, provides in relevant part: “Any person who operates a motor vehicle in this state shall be deemed to have given such person’s consent to a chemical analysis of such person’s blood, breath or urine . . . .”

       General Statutes § 14-227b (e) provides in relevant part: “Any person whose license or operating privilege has been suspended in accordance with this subsection shall automatically be entitled to a hearing before the commissioner to be held prior to the effective date of the suspension. . . .”

       The A-44 form is used by the police to report an arrest related to operating a motor vehicle under the influence and the results of any sobriety tests administered or the refusal to submit to such tests.

         General Statutes § 4-183 (a) provides in relevant part: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court. . . .”

       General Statutes (Rev. to 1999) § 14-227b (c), as amended by § 2 of P.A. 99-255, provides in relevant part: “The police officer shall prepare a written report, of the incident and shall mail the report together with a copy of the completed temporary license form, any operator’s license taken into possession and a copy of the results of any chemical test or analysis to the Department of Motor Vehicles within three business days. The report shall be made on a form approved by the Commissioner of Motor Vehicles and shall be subscribed and sworn to under penalty of false statement as provided in section 53a-157b by the arresting officer. If the person arrested refused to submit to such test or analysis, the report shall be endorsed by a third person who witnessed such refusal. The report shall set forth the grounds for the officer’s belief that there was probable cause to arrest such person for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and shall state that such person had refused to submit to such test or analysis when requested by such police officer to do so or that such person submitted to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that such person had an elevated blood alcohol content.”

       See footnotes 3 and 5.

       In Volck, our Supreme Court stated: “When hearsay statements ha.ve come into a case without objection they may be relied upon by the trier, in proof of the matters stated therein, for whatever they were worth on their face.” (Internal quotation marks omitted.) Volck v. Muzio, supra, 204 Conn. 518.

       The regulation was enacted for the purpose of defining the procedures for holding administrative hearings by the department of motor vehicles. Administrative Regulations, Notice of Intent to Adopt Regulations, Connecticut Law Journal, Vol. 51, No. 6, p. 3C (August 8, 1989).