author: HEIMAN, J.

text:
    STATE OF CONNECTICUT v. RAYMOND MARQUIS
    (13373)
    Heiman, Spear and Hennessy, Js.

      Argued January 25
    officially released July 16, 1996

      James M. Ralls, assistant state’s attorney, with whom were Nancy L. Gillespie, former deputy assistant state’s attorney, and, on the brief, James E. Thomas, state’s attorney, and Edward R. Narus, assistant state’s attorney, for the appellant (state).

      Matthew J. Collins, for the appellee (defendant).
   HEIMAN, J.

This matter is before us on remand from our Supreme Court. State v. Marquis, 235 Conn. 659, 668 A.2d 710 (1995). The state originally appealed to this court from the trial court’s dismissal of the case on the application of both the state and the defendant. State v. Marquis, 36 Conn. App. 803, 653 A.2d 833 (1995). Both parties had moved to dismiss the case following the trial court’s denial of the state’s motion for permission to videotape the testimony of the child victim outside the physical presence of the defendant. Id. On appeal, the state claimed that the trial court improperly (1) determined that the defendant was entitled to have his psychiatric expert examine the victim before the court could grant the state’s motion and (2) denied the state’s motion without exercising its statutory discretion pursuant to General Statutes § 54-86g. We declined to review the issues raised by the state, concluding that it had failed in its obligation to provide us with a record adequate to afford review. Id., 803. We concluded that the factual and legal basis of the trial court’s ruling was unclear, that the state had failed to seek an articulation and that, in the absence of a request for an articulation, we read an ambiguous record to support rather than to undermine the judgment. Id., 804.

Our Supreme Court granted the state’s petition for certification. The Supreme Court reversed the judgment of this court, concluding that, in its judgment, “this record is unambiguous. A reasonable reading of the record discloses that the trial court refused to permit videotaping of the child solely because the defendant’s psychiatrist was not permitted to examine the child.” (Emphasis added.) State v. Marquis, supra, 235 Conn. 663. We are, of course, bound by the determination of the Supreme Court as to what it concludes the record shows, and we must therefore resolve this case on the basis of the fact that the trial court denied the motion to videotape solely because the defendant’s expert was not permitted to examine the child. We now reverse the judgment of the trial court.

The facts necessary to a resolution of this appeal are as follows. The defendant was charged in a long form information with one count of sexual assault in the first degree in violation of General Statutes (Rev. to 1991) § 53a-70 (a) (2) and one count of risk of injury to a child in violation of General Statutes § 53-21. The state charged that the defendant committed the sexual assault by engaging in sexual intercourse with a person under thirteen years of age. The state claimed that the defendant penetrated the victim’s vagina with either a part of his body or an object manipulated by him. As to the crime of risk of injury to a child, the state charged that the defendant committed an act that was likely to impair the health or morals of a child under the age of sixteen years. The state asserted that the defendant subjected the victim to contact of her genital area with either a part of his body or with an object manipulated by him. The alleged victim of both crimes was four years old at the time of the alleged acts.

On July 7,1993, the state filed a motion for permission to videotape the testimony of the victim. The trial court heard the motion and, on July 30,1993, denied it without prejudice and with permission to renew it at the time of trial.

On February 1, 1994, at a hearing before the trial court, the state indicated that it intended to renew its motion. The state asserted that the victim would be unable to testify in the presence of the defendant and that, if the state’s motion was denied, it would be precluded from producing the complaining witness. The defendant objected to a relitigation of the issue. The trial court determined that the original motion had been neither factually nor legally resolved, and that the motion was properly before it.

On February 10, 1994, at the hearing on the state’s motion, the state completed its offer of evidence and the defendant requested that the trial court deny the state’s motion. The defendant claimed that the state had failed to sustain its burden of proof. The trial court responded by asking the defendant whether he wanted to offer evidence. The defendant indicated that he wanted to offer evidence but sought a ruling on his request to deny the state’s motion. The trial court responded by stating: “The state has produced a prima facie case.” As part of its response, however, the trial court also granted a motion that had been previously made by the defendant requesting that the victim be examined by the defendant’s psychiatric expert.

After a short recess, the state advised the court that the state had, at an earlier time, opposed the defendant’s motion to have the victim examined by the defendant’s expert. In response, the trial court ruled that the defendant was entitled to have the victim examined and that the state had presented a prima facie case as to the necessity of videotaping the victim’s testimony. The state indicated that the victim’s guardian ad litem did not want the victim to be examined and that the victim’s mother had reservations about such an examination. The state objected to making the victim available for examination and requested that the court rule on its pending motion to permit the videotaping of the victim’s testimony. In response to the state’s request, the trial court denied the motion. The trial court stated its ruling in the following terms: “On the refusal of the state to permit the child to be examined by the defense psychiatrist, then the court does have to deny the motion for videotaping.”

Following the court’s ruling, the state indicated that, in its judgment, the victim would not be able to testify in the presence of the defendant. The state asked the court to dismiss the case against the defendant and to permit the state to appeal the trial court’s ruling. The court dismissed the case and allowed this appeal.

I

The state’s first claim is that the trial court improperly determined that the defendant was entitled to have his psychiatric expert examine the victim before the court could grant the state’s motion to videotape the victim’s testimony. We agree.

In State v. Jarzbek, 204 Conn. 683, 684, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988), our Supreme Court addressed the question of “whether, in a criminal prosecution involving alleged sexual abuse of children, a minor victim may testify through the use of a videotape made outside the physical presence of the defendant.” The court concluded that “in criminal prosecutions involving the alleged sexual abuse of children of tender years, the practice of videotaping the testimony of a minor victim outside the physical presence of the defendant is, in appropriate circumstances, constitutionally permissible.” Id., 704. The court mandated a “case-by-case analysis, whereby a trial court must balance the individual defendant’s right of confrontation against the interest of the state in obtaining reliable testimony from the particular minor victim in question.” Id.

The Jarzbek court elaborated on its conclusion in the following manner: “Under the approach we adopt today, a trial court must determine, at an evidentiary hearing, whether the state has demonstrated a compelling need for excluding the defendant from the witness room during the videotaping of a minor victim’s testimony. In order to satisfy its burden of proving compelling need, the state must show that the minor victim would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that the trustworthiness of the victim’s testimony would be seriously called into question. Furthermore, the state bears the burden of proving such compelling need by clear and convincing evidence. . . . Although the trial court may consider the well-being of the witness as a significant factor in its analysis, the state cannot prove need simply by demonstrating that the victim would suffer some harm if forced to testify in the presence of the accused. We reiterate that, in light of the constitutional right of confrontation at stake here, the primary focus of the trial court’s inquiry must be on the reliability of the minor victim’s testimony, not on the injury that the victim may suffer by testifying in the presence of the accused.” (Citations omitted; emphasis added.) Id., 704-705.

The Jarzbek court did not hold that a defendant is entitled to have a defense expert conduct a psychological or psychiatric examination of a child victim prior to the videotaping of the victim’s testimony. The court noted, however, that “[i]f, after an evidentiary hearing, the trial court finds a compelling need to exclude the defendant from the witness room during the taping of a minor victim’s testimony, defense counsel must be afforded a full opportunity, prior to the videotaping session, to meet privately with the victim in order to discuss the events in question.” (Emphasis added.) Id., 705 n.10. Thus, nothing in Jarzbek, including footnote ten of that opinion, supports the trial court’s ruling here that a psychiatric examination of the victim by the defendant’s expert was a necessary prerequisite to granting the state’s motion to videotape the victim’s testimony.

Moreover, in examining footnote ten of Jarzbek, we have explained: “As a general rule, witnesses are not required to meet with defense counsel. Nor is the state affirmatively required to make its witnesses available to defense counsel. The state’s duty is to refrain from actively interfering with defense counsel’s access to witnesses who are otherwise willing to meet with defense counsel. . . . Our rules of practice are consistent with these principles. Practice Book § 791 permits depositions of witnesses in criminal cases only where a witness is likely to be unavailable for trial. Indeed, before trial, defense counsel is not even entitled to the statements of state’s witnesses that were given to law enforcement authorities, unless of course, they are exculpatory. See Practice Book §§ 746 (2), 741 (1), 751.

“We do not believe the Jarzbek majority intended to alter the rules of discovery in criminal cases by conferring an unlimited right on defense counsel to compel a pretrial meeting with the state’s witnesses, particularly child victims of sexual abuse. The court’s remark [in footnote ten], when construed in the light of long and well established rules governing discovery in criminal cases, is more properly read as a reminder by the court that, even when child victims are to be videotaped at a time and place removed from the remainder of the trial, the defendant must be afforded the same opportunity for meeting with such witnesses as otherwise exists under our rules of practice.” (Citations omitted.) State v. Darby, 19 Conn. App. 445, 454-55, 563 A.2d 710, cert. denied, 213 Conn. 801, 567 A.2d 833 (1989).

Subsequent to its decision in Jarzbek, the Supreme Court addressed the issue of whether expert opinion evidence is required at the trial court hearing regarding the necessity of videotaping the testimony of the child victim. State v. Spigarolo, 210 Conn. 359, 371-72, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). Although Spigarolo does not directly address the issues raised in this appeal, it sheds light on whether Jarzbek establishes the need for experts to be involved at all in the process of determining the testimonial reliability of a child victim. The court stated: “We reject the defendant’s argument that Jarzbek contemplates that expert testimony is necessary to establish the state’s burden of proof. Nothing in Jarzbek indicates any such requirement.” Id., 372. Thus, no requirement exists under Jarzbek or its progeny that experts must be utilized in the process of establishing the need to videotape the testimony of a child victim.

Our legislature has also set forth procedures that govern the taking of the testimony of child victims. General Statutes § 54-86g, originally adopted by our General Assembly in Public Acts 1985, No. 85-587, governs the videotaping of a child victim’s testimony outside the physical presence of the defendant. In addition, Public Acts 1985, No. 85-587, created a child witness competency rule, General Statutes § 54-86h, which provides that “[n]o witness shall be automatically adjudged incompetent to testify because of age and any child who is a victim of assault, sexual assault or abuse shall be competent to testify without prior qualification. The weight to be given the evidence and the credibility of the witness shall be for the determination of the trier of fact.”

Under the current statutory scheme governing the testimony of child victims, the legislature has not provided us with a statute that entitles a defendant to have a defense expert conduct a psychological or psychiatric examination of the child as a prerequisite to the court’s granting of a motion to videotape the child’s testimony. Prior to the enactment of § 54-86h, however, the competency of a child witness to testify was determined by the trial court. See State v. Brigandi, 186 Conn. 521, 534-35, 442 A.2d 927 (1982). Moreover, under the previous system of determining the testimonial competency of an alleged child victim, the trial court was entitled, although not mandated, to order a psychiatric examination of the child if it deemed such an examination necessary. See State v. Manning, 162 Conn. 112, 114-16, 291 A.2d 750 (1971). Thus, § 54-86h effected a substantial change in the procedure for establishing whether child victims are to be considered competent to testify. That procedure does not provide for a psychiatric examination by a defense expert prior to the granting of a motion to videotape the child’s testimony pursuant to § 54-86g. It is presumed that the legislature, in enacting statutes, acts with the knowledge of existing relative statutes and with the intent to create one consistent body of law. Commissioner v. Freedom of Information Commission, 204 Conn. 609, 620, 529 A.2d 692 (1987). By enacting §§ 54-86g and 54-86h as part of the same public act and in light of the case law existing at the time of enactment, the legislature clearly intended to create an updated and consistent body of law regulating the testimony of child victims of assault, sexual assault or abuse.

We have also examined the statutes and rules of practice relating to discovery in criminal cases. None of these provisions mandates that a child sexual assault victim be examined by the defendant’s expert as a condition precedent to a trial court’s granting of a motion pursuant to § 54-86g. No good purpose will be served by listing each of the statutes and rules of practice relating to criminal discovery. Our review of the statutes and rules of discovery fails to disclose any statute or rule, or combination thereof, that mandates such an examination, contrary to the trial court’s determination.

On the basis of the foregoing, we conclude that the trial court improperly determined that the defendant was entitled to have his expert conduct a psychiatric examination of the child victim as a prerequisite to the court’s granting of the state’s motion filed pursuant to § 54-86g.

II

The state also asserts that the trial court improperly denied the state’s § 54-86g motion without exercising its discretion pursuant to that section. We agree.

“[T]he trial court’s discretion under § 54-86g to order the taking of the victim’s testimony outside the defendant’s physical presence is circumscribed by the criteria established in Jarzbek. In applying the Jarzbek criteria to motions made pursuant to § 54-86g, we rewrite nothing in the language of the statute, but identify those conditions under which the trial court constitutionally may exercise its statutory discretion to grant the motion.” State v. Snook, 210 Conn. 244, 251, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989). “Discretion imports more than leeway in decision making. It implies a legal prudence and sagacity to be exercised in conformity with the spirit of the law and in a manner to serve and not to impede the ends of substantive justice.” State v. Bagley, 35 Conn. App. 138, 141 n.5, 644 A.2d 386, cert. denied, 231 Conn. 913, 648 A.2d 157 (1994). Moreover, the trial court’s exercise of its legal discretion “must be informed by the policies that the [relevant] statute is intended to advance.” In re Sheldon G., 216 Conn. 563, 584, 583 A.2d 112 (1990).

Here, the trial court ruled on the state’s motion before the defendant had an opportunity to present any evidence, and the court based its ruling on an incorrect premise that the defendant was entitled, as a matter of law, to have his psychiatric expert examine the victim as a prerequisite to the court’s granting of the motion. Moreover, while the court found that the state had made out a “prima facie case” pursuant to § 54-86g, the court did not make a finding as to whether the state had met its burden of proof by clear and convincing evidence pursuant to both Jarzbek and the express language of § 54-86g. Thus, the trial court improperly ruled as it did because it did not make the appropriate findings that it was required to make to determine whether the testimony of the victim was to be videotaped outside the physical presence of the defendant.

In summary, we conclude that a defendant is not entitled to have a defense expert conduct a psychological or psychiatric examination of an alleged child victim as a prerequisite to the trial court’s granting of a motion filed pursuant to § 54-86g. The trial court acted improperly in denying the state’s motion filed pursuant to that statute based on the failure of the victim to submit to such an examination.

The judgment is reversed and the case is remanded for a full evidentiary hearing on the state’s motion to videotape the testimony of the victim outside the physical presence of the defendant and for further proceedings according to law.

In this opinion the other judges concurred.

       General Statutes § 54-96 provides: “Appeals from the rulings and decisions of the superior court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the supreme court or to the appellate court, in the same manner and to the same effect as if made by the accused.”

       General Statutes § 54-86g provides: “(a) In any criminal prosecution of an offense involving assault, sexual assault or abuse of a child twelve years of age or younger, the court may, upon motion of the attorney for any party, order that the testimony of the child be taken in a room other than the courtroom in the presence and under the supervision of the trial judge hearing the matter and be televised by closed circuit equipment in the courtroom or recorded for later showing before the court. Only the judge, the defendant, the attorneys for the defendant and for the state, persons necessary to operate the equipment and any person who would contribute to the welfare and well-being of the child may be present in the room with the child during his testimony, except that the court may order the defendant excluded from the room or screened from the sight and hearing of the child only if the state proves, by clear and convincing evidence, that the child would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that a compelling need exists to taire the testimony of the child outside the physical presence of the defendant in order to insure the reliability of such testimony. If the defendant is excluded from the room or screened from the sight and hearing of the child, the court shall ensure that the defendant is able to observe and hear the testimony of the child, but that the child cannot see or hear the defendant. The defendant shall be able to consult privately with his attorney at all times during the taking of the testimony. The attorneys and the judge may question the child. If the court orders the testimony of a child to be taken under this subsection, the child shall not be required to testify in court at the proceeding for which the testimony was taken.
      “(b) In any criminal prosecution of an offense involving assault, sexual assault or abuse of a child twelve years of age or younger, the court may, upon motion of the attorney for any party, order that the following procedures be used when the testimony of the child is taken: (1) Persons shall be prohibited from entering and leaving the courtroom during the child’s testimony; (2) an adult, who is known to the child and with whom the child feels comfortable shall be permitted to sit in close proximity to the child during the child’s testimony, provided such person shall not obscure the child from the view of the defendant or the trier of fact; (3) the use of anatomically correct dolls by the child shall be permitted; and (4) the attorneys for the defendant and for the state shall question the child while seated at a table positioned in front of the child, shall remain seated while posing objections and shall ask questions and pose objections in a manner which is not intimidating to the child.”

       The grant of certification was limited to the following issue: “Did the Appellate Court properly affirm the trial court’s judgment dismissing the information on the ground that it was impossible to ascertain from the record the basis on which the trial court, denied the state’s motion to videotape the victim’s testimony.” State v. Marquis, 233 Conn. 902, 657 A.2d 641 (1995).

       The state refused to permit the psychiatric examination pursuant to the objections to the examination voiced by the child’s mother and guardian ad litem.

       General Statutes (Rev. to 1991) § 53a-70 provides in pertinent part: “(a) A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with a person under thirteen years of age.”

       General Statutes § 53-21 provides: “Anyperson who wilfully orunlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       The motion is not a part of the record. In the record, the clerk reports by letter that the trial court docket entries reflect that the state filed such a motion on July 7, 1993, but that the original motion could not be located for inclusion in the record.

       On February 4, 1994, the state renewed its motion in writing.

       The colloquy between the court and counsel was as follows:
      “[Defendant’s Counsel]: Your Honor, I would just at this point move
      that the court deny the state’s motion solely on its—the evidence that it’s presented. It has—according to Jarzbek and its progeny, it has a substantial burden.
      “The Court: You don’t want to offer any evidence?
      “[Defendant’s Counsel]: Well, I do have evidence, but I think for the purposes of—well, for the purposes of this hearing, I don’t think the state has carried its burden. I would also renew my motion to have—well, we can take them one step at a time, but—
      “The Court: I grant your motion to have the child examined by the doctor, but you indicated that in this hearing you wanted to present evidence.
      “[Defendant’s Counsel]: Well, Your Honor, I do have evidence to present. I think for the purposes of fairness and also in light of what’s been presented so far, I think as part of that I should be entitled to have— “The Court: The state has produced a prima facie case. You have evidence to present?
      “[Defendant’s Counsel]: I do have evidence, but I would also ask, as part of—I would ask that I be allowed to have the child examined as part of this hearing also.
      “The Court: That’s the order I get. I just have given the order on that motion to have the child examined by Dr. Solnit as a matter of this motion.”

       The colloquy between the assistant state’s attorney and the trial court was as follows:
      “[Assistant State’s Attorney]: As I understand Your Honor’s comments prior to the recess, you are, in fact, or have indicated that the child victim here ... in the case must be turned over to the defense expert, [Dr.] Solnit, for examination of her at two o’clock; is that—that’s as I understood that.
      “The Court: That’s what I had said and ordered.
      “[Assistant State’s Attorney]: Okay. And in that case, the state obviously had made a motion to oppose that request by the defense counsel, and I would ask the court to make a ruling on that motion to deny that request of the state.
      “The Court: I thought that was the answer to the motion. I held a decision in reservation until I heard the state’s case, and I’m satisfied that the state has given a prima facie case. So at this point of time, I grant the defense motion to have the child examined by their expert, which I believe is Dr. Solnit, and that comes as a matter of Practice Book rules of discovery or the state of mind as offered to limit confrontation or for any other purpose. The other, adverse, side has an opportunity of examining for that state of mind. In this particular matter, if the state is going to succeed in videotaping the child’s testimony out of the presence of the defendant and/or the presence of the jury, the defense is entitled in that hearing to determine whether or not such procedure is necessary. So at this point of time, I have sufficient evidence that the state has produced a prima facie case, and the defense at this time is entitled to examination of the child.”

       See footnote 1.

       The court did not address General Statutes § 54-86g because that statute did not become effective until after the initiation of the case. State v. Jarzbek, supra, 204 Conn. 686 n.2.

       See footnote 2.

       General Statutes (Rev. to 1989) § 54-86g was amended by Public Acts 1989, No. 89-177 to reflect the decision of the Supreme Court in Jarzbek that the state bears the burden of proving, by clear and convincing evidence, that a compelling need exists to videotape the testimony of the child outside the physical presence of the defendant. See General Statutes § 54-86g (a).

       See footnote 2.


source: Caselaw Access Project

license: Public Domain

text:
    DAVID LIBBY v. GOODWIN PONTIAC-GMC TRUCK, INC., ET AL.
    (14661)
    Foti, Heiman and Spear, Js.
    Argued March 26
    officially released July 16, 1996

      Brian E. Prindle, for the appellants (defendants).

      Robert C. Ruggiero, Jr., with whom, on the brief, was Joseph S. Dobrowolski, for the appellee (plaintiff).
   HEIMAN, J.

The defendants appeal from the decision of the workers’ compensation review board (review board). The review board affirmed the finding and award of the workers’ compensation commissioner for the second district (commissioner). On appeal, the defendants claim that the review board improperly affirmed the commissioner’s finding that the defendants (1) were responsible for the payment of the plaintiffs hospital bill, (2) were not entitled to a credit against their workers’ compensation liability in the amount of the plaintiffs recovery from a third party and (3) had failed to perfect their statutory rights under General Statutes (Rev. to 1991) § 31-293. We affirm the decision of the review board.

The following relevant facts are not in dispute. The plaintiff, David Libby, was an employee of the named defendant, Goodwin Pontiac-GMC Truck, Inc., on February 1, 1987, when he was injured in a work-related automobile accident involving a third party. The plaintiff did not file an action against the third party, but, in September, 1989, the plaintiff received a $37,365 settlement from the third party. The defendants were not involved in the settlement, and neither the plaintiff nor the third party paid or promised to pay the defendants any settlement proceeds. The defendants did not file an action against the third party. On July 20, 1990, the plaintiff received treatment for his injury at John Dempsey Hospital and incurred a bill of $2058. The defendants declined to pay the bill, claiming that they were entitled to a credit against their workers’ compensation liability in the amount of the plaintiffs settlement with the third party.

The commissioner determined that the defendants were not entitled to a credit in the amount of the plaintiffs settlement, and that the defendants must pay the hospital bill. In making his determination, the commissioner found that the defendants’ rights were governed by § 31-293, which entitled the defendants to bring an action against the third party, and that the defendants’ failure to bring such an action precluded them from claiming a credit in the amount of the plaintiffs settlement. The review board affirmed the finding of the commissioner.

The dispositive issue governing the defendants’ claims is whether they are entitled to a credit against their workers’ compensation liability in the amount of the plaintiffs settlement with the third party. The defendants posit that they are entitled to such a credit despite the fact that they did not bring an action against the third party pursuant to § 31-293. The defendants argue that because they are entitled to such a credit, they are not required to pay the plaintiffs hospital bill. We do not agree.

We first set forth our standard of review. “The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Besade v. Interstate Security Services, 212 Conn. 441, 449, 562 A.2d 1086 (1989). The compensation review [board] must review the appeal on the record and must not retry facts. Hicks v. Department of Administrative Services, 21 Conn. App. 464, 466, 573 A.2d 770, cert. denied, 216 Conn. 804, 577 A.2d 716 (1990); Imbrogno v. Stamford Hospital, 28 Conn. App. 113, 118, 612 A.2d 82, cert. denied, 223 Conn. 920, 614 A.2d 82 (1992). . . . Black v. London & Egzarian Associates, Inc., 30 Conn. App. 295, 299-300, 620 A.2d 176, cert. denied, 225 Conn. 916, 623 A.2d 1024 (1993).” (Internal quotation marks omitted.) Chute v. Mobil Shipping & Transportation Co., 32 Conn. App. 16, 18-19, 627 A.2d 956, cert. denied, 227 Conn. 919, 632 A.2d 688 (1993).

The defendants principally rely on Rosenbaum v. Hartford News Co., 92 Conn. 398, 103 A. 120 (1918), for the proposition that they are entitled to a credit against their workers’ compensation liability in the amount of the plaintiffs third party settlement. In Rosenbaum, an employee recovered a monetary settlement from a third party tortfeasor and subsequently sought workers’ compensation benefits from his employer. Id., 399. “The Commissioner held that the right of the claimant to compensation under the [Workers’ Compensation Act] had been satisfied by the payment made by the [third party] to the claimant of a sum in excess of the statutory compensation, and the Superior Court sustained the action of the Commissioner and dismissed the appeal.” Id. The Supreme Court affirmed the judgment of the Superior Court. Id., 403. Subsequent decisions of our Supreme Court, including Skitromo v. Meriden Yellow Cab Co., 204 Conn. 485, 528 A.2d 826 (1987), and Enquist v. General Datacom, 218 Conn. 19, 587 A.2d 1029 (1991), have interpreted Rosenbaum and discussed an employer’s right to a credit, and we conclude, having examined those cases, that the defendants are not entitled to the credit that they claim.

In both Skitromo and Enquist, an injured employee commenced an action against a third party tortfeasor and settled the action, and, thereafter, the employer sought to credit the amount of the employee’s settlement against its workers’ compensation liability. See Enquist v. General Datacom, supra, 218 Conn. 21-22; Skitromo v. Meriden Yellow Cab Co., supra, 204 Conn. 487. In Skitromo, the Supreme Court denied the employer’s claim for a credit in the amount of the employee’s settlement; Skitromo v. Meriden Yellow Cab Co., supra, 486; whereas, in Enquisl, the court allowed such a credit. Enquist v. General Datacom, supra, 21. We next turn to a more detailed discussion of Skitromo and Enquist.

In Skitromo, “[t]he sole issue in [the] appeal [was] whether an employer who is obligated to pay workers’ compensation benefits to an injured employee may credit against its future compensation liability the amount recovered by that employee in a third party action despite the employer’s failure to intervene in the third party proceedings in the manner prescribed by General Statutes § 31-293.” (Emphasis added.) Skitromo v. Meriden Yellow Cab Co., supra, 204 Conn. 485-86. The court held that “the employer’s failure to intervene in the third party action deprived it of any interest in the employee’s third party recovery, and that the employer, therefore, is not entitled to credit that recovery against its future workers’ compensation liability.” Id., 486.

The Skitromo court stated that Rosenbaum and other cases relied on by the defendants in that case for the proposition that “they may credit the net amount received by the plaintiff in the third party settlement against their future workers’ compensation liability”; Skitromo v. Meriden Yellow Cab Co., supra, 204 Conn. 488; “establish only that an employer has a general right to be reimbursed from a third party tortfeasor for benefits paid to an employee for injuries caused by the third party. This right is established by General Statutes § 31-293, which allows both employers and employees to bring an action against a third party who is allegedly responsible for the employee’s injury. By allowing either an employer or an employee to bring an action, the law seeks to vindicate both the employee’s interest in receiving the full scope of tort damages that remain uncompensated by a workers’ compensation award and the employer’s interest in being reimbursed for payments made because of the third party’s malfeasance. See DeSantis v. Gaudioso, 39 Conn. Sup. 222, 223, 476 A.2d 149 (1983); 2A A. Larson, Workmen’s Compensation Law § 71.20.” (Emphasis added.) Skitromo v. Meriden Yellow Cab Co., supra, 488.

The Skitromo court further stated that “[t]he defendants attempt to circumvent the requirements of General Statutes § 31-293 by characterizing their claim not as a right to reimbursement from the third party tortfeasor, but as a right to reduce their future payments owed to the injured employee. The defendants, however, have no such right against an employee either by statute or common law. Norwalk v. Van Dyke, 33 Conn. Sup. 661, 666, 366 A.2d 554, cert. denied, 172 Conn. 681, 364 A.2d 864 (1976). Their sole means to assert any right against the plaintiff s third party recovery was by way of the procedure set forth in § 31-293. By failing to comply with the statutory procedure, any right of the defendants to the plaintiffs third party recovery, including the alleged right to credit that recovery against its future liability, was extinguished.” (Emphasis added.) Skitromo v. Meriden Yellow Cab Co., supra, 204 Conn. 489-90.

In Enquist, “[t]he sole issue presented [was] whether an employer, who has properly intervened in an action by an injured employee against a third party, may set off future compensation claims against the net proceeds that the employee thereafter recovers from the third party tortfeasor.” (Emphasis added.) Enquist v. General Datacom, supra, 218 Conn. 20-21. The court “conclude[d] that such a set off is permitted.” Id., 21.

In Enquist, the court indicated that its earlier holdings, including the holding in Rosenbaum, established “that a recovery against a third party that exceeded the compensation benefits paid, terminated absolutely an employer’s obligation to make further compensation payments.” Id., 24. The court, construing § 31-293, also stated: “In its 1951 amendment, the legislature provided that an employer had a continuing obligation to provide compensation. The General Assembly, however, made no attempt to alter our earlier construction of the statute, as set forth in Rosenbaum, that an employer was discharged from his obligations to the extent of the excess moneys available from a third party recovery. In the absence of any express statutory language or legislative history suggesting that our precedent was to be overruled, we decline to read the 1951 amendment of this statute as eliminating an employer’s right to a credit to the extent that there are excess proceeds from a third party recovery.” Id., 25. The Enquist court did not cite Skitromo or examine the Skitromo court’s interpretation of Rosenbaum and § 31-293.

Thus, pursuant to the limited holdings of Skitromo and Enquist, it is clear that where the employee files an action against a third party tortfeasor, the employer properly intervenes in that action pursuant to § 31-293, and the employee settles that action, the employer is thereafter entitled to credit the amount of the employee’s settlement proceeds against the amount of the employer’s future workers’ compensation liability. Here, however, the plaintiff did not file an action against the third party tortfeasor prior to settlement, and, thus, the limited holdings of Skitromo and Enquist are not entirely instructive. We are therefore faced with the task of determining whether an employer is entitled to a credit in the amount of an employee’s third party recovery, where the recovery is a result of a settlement and no action was filed against the third party pursuant to § 31-293.

Although the limited holdings of Skitromo and Enquist do not entirely control the present case, we are guided by those holdings and the interpretation of Rosenbaum set forth in Skitromo, and we conclude that the defendants are not entitled to a credit in the amount of the plaintiffs recovery from the third party settlement. Our reading of Skitromo and Enquist convinces us that the Supreme Court has been reluctant to allow an employee’s third party settlement proceeds to be credited against an employer’s subsequent workers’ compensation liability where the employer has failed to exercise its rights pursuant to § 31-293. Here, the defendants failed to file an action against the third party pursuant to § 31-293. By failing to do so, “any right of the defendants to the plaintiffs third party recovery, including the alleged right to credit that recovery against its future liability, was extinguished.” Skitromo v. Meriden Yellow Cab Co., supra, 204 Conn. 489-90. Moreover, in comparing both Skitromo and Enquist to this case, we find that the defendants’ failure to exercise their rights pursuant to § 31-293 is most similar to that of the defendants in Skitromo. We, therefore, rely chiefly on Skitromo and its interpretation of Rosenbaum in concluding that the defendants are not entitled to the credit that they claim. Thus, the review board properly affirmed the commissioner’s finding that because the defendants did not bring an action pursuant to § 31-293, they were not entitled to a credit and were, consequently, obligated to pay the plaintiffs hospital bill.

The decision of the compensation review board is affirmed.

In this opinion the other judges concurred.

       The defendants are Goodwin Pontiac-GMC Truck, Inc., the plaintiffs employer, and Helmsman Management Services, Inc., the employer’s workers’ compensation insurance carrier.

       General Statutes (Rev. to 1991) § 31-293 (a) provides: “When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of such injured employee against such other person, but such injured employee may proceed at law against such person to recover damages for such injury; and any employer having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such other person to recover any amount that he has paid or has become obligated to pay as compensation to such injured employee. If either such employee or such employer brings such action against such third person, he shall forthwith notify the other, in writing, by personal presentation or by registered or certified mail, of such fact and of the name of the court to which the writ is returnable, and such other may join as a party plaintiff in such action within thirty days after such notification, and, if such other fails to join as a party plaintiff, his right of action against such third person shall abate. In any case in which an employee brings an action against a third party in accordance with the provisions of this section, and the employer is a party defendant in such action, the employer may join as a party plaintiff in such action. The bringing of any such action against an employer shall not constitute notice to such employer within the meaning of this section. If such employer and employee join as parties plaintiff in such action and any damages are recovered, such damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of such recovery, after the deduction of reasonable and necessary expenditures, including attorneys’ fees, incurred by the employee in effecting such recovery. The rendition of a judgment in favor of the employee or the employer against such party shall not terminate the employer’s obligation to make further compensation, including medical expenses, which the compensation commissioner thereafter deems payable to such injured employee. If the damages, after deducting the employee’s expenses as provided above, are more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse him for his claim, and the excess shall be assessed in favor of the injured employee. No compromise with such third person by either employer or employee shall be binding upon or affect the rights of the other, unless assented to by him. For the purposes of this section the employer’s claim shall consist of (1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of such injury. The word ‘compensation’, as used in this section, shall be construed to include not only incapacity payments to an injured employee and payments to the dependents of a deceased employee, but also sums paid out for surgical, medical and hospital services to an injured employee, the one-thousand-dollar burial fee provided by law and payments made under the provisions of sections 31-312 and 31-313.”
      We note that General Statutes (Rev. to 1995) § 31-293 (a), the current version of that section, contains the following provision: “Notwithstanding the provisions of this subsection, when any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a third person other than the employer a legal liability to pay damages for the injury and the injured employee has received compensation for the injury from his employer or its workers’ compensation insurance carrier pursuant to the provisions of this chapter, the employer or insurance carrier shall have a lien upon any judgment received by the employee against the third party or any settlement received by the employee from the third party, provided the employer or insurance carrier shall give written notice of the lien to the third party prior to such judgment or settlement.” This provision, however, was enacted in 1993, subsequent to the events relevant to the disposition of this case, and consequently, we do not discuss this provision in our resolution of this case.

       The named defendant’s insurance carrier accepted the injury as a compensable work-related injury.

       The other cases are Stavola v. Palmer, 136 Conn. 670, 680, 73 A.2d 831 (1950), Mickel v. New England Coal & Coke Co., 132 Conn. 671, 678, 47 A.2d 187 (1946), and United States Fidelity & Guaranty Co. v. New York, N. H. & H. R. Co., 101 Conn. 200, 203, 125 A. 875 (1924).

       The other cases cited by the Enquist court were Stavola v. Palmer, 136 Conn. 670, 73 A.2d 831 (1950), and Michel v. New England Coal & Coke Co., 132 Conn. 671, 47 A.2d 187 (1946). See footnote 4.


author: HENNESSY, J.

text:
    BLUEBIRD AVIATION CORPORATION v. AVIATION COMMISSION OF THE CITY OF DANBURY CITY OF DANBURY v. BLUEBIRD AVIATION CORPORATION
    (14322)
    Foti, Heiman and Hennessy Js.

      Argued January 23
    officially released July 16, 1996

      Richard J. Diviney, with whom, on the brief, was Thomas Kottler, for the appellant (plaintiff in the first case, defendant in the second case).

      Gerard McEnery, with whom, on the brief, were Barry J. Sinoway, and Mary-Elise Incerto, law student intern, for the appellee (defendant in the first case).

      Peter N. Buzaid, assistant corporation counsel, for the appellee (plaintiff in the second case).
   HENNESSY, J.

Bluebird Aviation Corporation (Bluebird) appeals from the judgments in favor of the city of Danbury and the judgment in favor of the city’s aviation commission after trial before the court. The aviation commission is a municipal agency of Danbury. This appeal involves two actions that pertain to the same provisions of a lease agreement between Bluebird and the aviation commission. In the first action, Bluebird filed a complaint against the aviation commission in two counts alleging breach of contract and breach of the implied covenant of good faith and fair dealing. In the second action, the city filed a complaint against Bluebird alleging that Bluebird failed to pay fees according to rules and regulations adopted by the aviation commission. The rules and regulations are known as the Minimum Standards for Lease and Use of the Danbury Municipal Airport (aviation standards). Bluebird counterclaimed in the second action alleging breach of contract and breach of the implied covenant of good faith and fair dealing. The actions were consolidated for trial. The trial court rendered judgment for the aviation commission and the city. Bluebird claims that the trial court improperly interpreted the lease. We affirm the judgments of the trial court.

The following facts are relevant to the disposition of this appeal. Bluebird holds a permit to act as a fixed base operator at the Danbury airport. As a fixed base operator, Bluebird provides the following services: flight instruction, aircraft sales, aircraft repair and maintenance, fuel sales and avionics sales. Bluebird conducts its business on land that it owns, which is contiguous to the airport, and land that it has leased from the aviation commission since 1976. The initial term of that lease is twenty-five years. That lease is the subject of this appeal, and the following provisions of the lease are pertinent to the resolution of this appeal:

“7. All applicable provisions of “Minimum Standards for Lease and/or Use of the Danbury Municipal Airport” [aviation standards] adopted by the Danbury Aviation Commission of the City of Danbury, Connecticut, [aviation commission] on June 11, 1970, and as the same are amended from time to time (with the exception of Paragraph[s] 9.1 and 9.2) are incorporated herewith and made a part hereof.

* *

“26. During the initial [twenty-five] (25) year term of this Lease, the Lessee shall pay Category Fees in accordance with Paragraph 9.2 of ‘Minimum Standards for Lease and/or Use of the Danbury Municipal Airport,’ [aviation standards] as adopted by the Aviation Commission of the City of Danbury [aviation commission] on June 11, 1970, as the same is in force as of the date of this Lease. ...”

Paragraph 9.2 of the 1970 aviation standards provides that fixed base operators shall pay category fees based on the volume of business that they do in each service category. Another relevant provision of the 1970 aviation standards is paragraph 9.4, which provides that fixed base operators shall pay a minimum use fee of a specified amount in the event that the category fee does not exceed the specified minimum for that category. In 1988, the aviation commission amended the aviation standards. First, the aviation commission eliminated the category fees, which had been set forth in paragraph 9.2. Next, the aviation commission inserted a new minimum use fee schedule, formerly in paragraph 9.4, and designated it paragraph 9.2.* ** Hence, paragraph 9.2 of the 1988 aviation standards pertains to minimum use fees.

Bluebird contends that it agreed to pay only the category fees set forth in paragraph 9.2 of the 1970 aviation standards. Bluebird further claims that the trial court improperly concluded that, pursuant to the lease, it is also subject to the minimum use fees set forth in paragraph 9.4 of the 1970 aviation standards and paragraph 9.2 of the 1988 aviation standards. The aviation commission argues that the lease specifically incorporated the minimum use fee provision set forth in paragraph 9.4 of the 1970 aviation standards and that the lease leaves that provision subject to amendment by the aviation commission. The aviation commission contends, therefore, that Bluebird is subject to the amended minimum use fee schedule set forth in paragraph 9.2 of the 1988 aviation standards.

The trial court concluded that the lease incorporates paragraph 9.2 of the 1970 aviation standards and exempts that provision from amendment. It further concluded that the lease incorporates the remainder of the aviation standards as they may be amended. As a result, the court found that the lease necessarily incoiporates the minimum use fee provision set forth in paragraph 9.4 of the 1970 aviation standards. Finally, the court concluded that the lease also incoiporates the amended version of the minimum use fee provision, now set forth in paragraph 9.2 of the 1988 aviation standards.

The first question that we must address is the standard of review that we apply to the trial court’s judgment. The city contends that we should employ the clearly erroneous standard of review because the trial court made findings of fact regarding the amendment of paragraph 9.4 of the aviation standards and because the trial court applied a principle of construction that reconciled apparently inconsistent provisions of the lease. Both Bluebird and the aviation commission submit that the trial court’s judgment is subject to plenary review.

“ ‘Where there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.’ ” Gateway Co. v. DiNoia, 232 Conn. 223, 229-30, 654 A.2d 342 (1995). Such a determination is subject to plenary review by this court. The trial court’s memorandum of decision and its response to a request for articulation reveal that the trial court interpreted the lease based on its language. See id. We conclude that the contract contains definitive language and, therefore, that the interpretation of the lease is subject to plenary review. See Kathuria v. Purcell, 40 Conn. App. 227, 230-31, 670 A.2d 889 (1996).

I

Bluebird first claims that the clear intent of the lease was to freeze the level of fees payable by Bluebird for the first twenty-five years of the lease to the category fees set forth in paragraph 9.2 of the 1970 aviation standards and that it agreed to pay only those fees. In support of this claim, Bluebird relies on the following language from paragraph 26 of the lease: “the Lessee shall pay Category Fees in accordance with Paragraph 9.2.” Bluebird contends that the word “shall” in this context means that Bluebird is obligated to pay only the category fees of paragraph 9.2 and no others. The trial court found that while paragraph 26 of the lease freezes category fees to those set forth in paragraph 9.2 of the 1970 aviation standards, the lease specifically incorporated the other provisions of the aviation standards, including the minimum use fees of paragraph 9.4, as they may be amended. Bluebird contends that this conclusion abrogates the intent of the lease, as expressed in paragraphs 7 and 26, to freeze the level of Bluebird’s category fee liability because it allows the aviation commission to make Bluebird liable for a higher minimum fee. We agree with the trial court.

“In determining the meaning and effect of the controverted language in the lease, the inquiry must focus on the intention expressed in the lease and not on what intention existed in the minds of the parties.” (Internal quotation marks omitted.) Gateway Co. v. DiNoia, supra, 232 Conn. 231. “When the plain meaning and intent of the language is clear, a clause in a written lease cannot be enlarged by construction. There is no room for construction where the terms of the writing are plain and unambiguous, and it is to be given effect according to its language.” (Internal quotation marks omitted.) Id., 232.

In this case, paragraph 26 of the lease provides that Bluebird shall pay category fees in accordance with paragraph 9.2 of the 1970 aviation standards. The word “shall” in this case does not connote that Bluebird shall pay only those fees, but delineates how it shall pay those fees. The word “shall” mandates that Bluebird will pay category fees according to the 1970 aviation standards. The payment of category fees according to any other provision would violate the mandatory nature of the word “shall.” We conclude, therefore, that paragraph 26 of the lease does freeze category fees, but that it does not exclude the possibility that Bluebird will be subject to other fees.

This interpretation is buttressed by paragraph 7 of the lease, which incorporates the provisions of the aviation standards and makes them a part of the lease. It is clear from the language of the lease that this incorporation includes paragraph 9.4 of the aviation standards, which establishes a minimum use fee for each permit category. Paragraph 9.4 provides that the minimum use fee is payable in place of the category fee in the event that the category fee does not reach the minimum fee set forth in paragraph 9.4 of the aviation standards. Bluebird’s interpretation of paragraph 26 would make this provision of the lease surplusage. “Every provision of the contract must be given effect if it can reasonably be done, because parties ordinarily do not insert meaningless provisions in their agreements.” Connecticut Co. v. Division 425, 147 Conn. 608, 617, 164 A.2d 413 (1960); see also Ceci v. National Indemnity Co., 225 Conn. 165, 175-76, 622 A.2d 545 (1993).

We conclude that while paragraph 26 freezes the level of category fees, Bluebird is also subject to the minimum use fee provision of paragraph 9.4 of the 1970 aviation standards.

II

Bluebird next claims that it is not subject to the higher minimum use fees because they are now found in paragraph 9.2 of the aviation standards, a provision that paragraph 7 of the lease expressly states may not be amended. The trial court found that paragraph 9.2 of the 1988 aviation standards is simply an amendment of the minimum use fees formerly found in paragraph 9.4. It concluded that because the minimum use fees apply to Bluebird and because they could be amended, the amended use fees found in paragraph 9.2 of the 1988 aviation standards apply to Bluebird. We agree with the trial court’s result.

The resolution of this question turns on the interpretation of paragraph 7 of the lease. Bluebird contends that paragraph 7 states that paragraph 9.2 may not be amended. We disagree. We conclude that the language “with the exception of Paragraph[s] 9.1 and 9.2” specifies which paragraphs of the aviation standards were not incorporated into the lease, rather than which paragraphs of the aviation standards were not to be amended.

The conclusion that paragraph 7 of the lease does not incorporate paragraph 9.2 of the 1970 aviation standards does not mean that category fees were not a part of the lease or that they could be amended, in fact, it strengthens the position to the contrary. Paragraph 26 of the lease set category fees according to paragraph 9.2 of the aviation standards as it existed on the date of the lease. To interpret both paragraphs 7 and 26 of the lease as incorporating paragraph 9.2 of the aviation standards would make the lease redundant.

Bluebird’s argument fails because paragraph 7 of the lease does not proscribe the amendment of paragraph 9.2 of the aviation standards. When the parties entered into the lease, paragraph 7 incorporated the minimum use fees of paragraph 9.4 of the aviation standards into the lease. Paragraph 7 also permitted the aviation commission to amend paragraph 9.4 of the aviation standards. Paragraph 9.2 of the 1988 aviation standards is simply an amendment to paragraph 9.4 of the 1970 aviation standards. Nothing in the lease prohibits that amendment. Furthermore, the provision excepting paragraph 9.2 of the aviation standards from incorporation is not violated because it is clear that paragraph 9.2 of the 1988 aviation standards is an amendment to paragraph 9.4 of the 1970 aviation standards, which paragraph 7 incorporated, and not paragraph 9.2 of the 1970 aviation standards, which paragraph 7 did not incorporate.

Even if we interpret paragraph 7 as excepting paragraph 9.2 of the aviation standards from amendment rather than incorporation, Bluebird’s argument still fails. We agree with the trial court that it is clear from the express language of paragraph 26 of the lease that the substance of paragraph 9.2 of the 1970 aviation standards pertains to category fees. We also agree with the trial court that the lease protected paragraph 9.2 of the aviation standards from amendment because it sought to freeze category fees. Paragraph 9.2 of the 1988 aviation standards, on the other hand, pertains to minimum use fees. We earlier concluded that paragraph 7 of the lease incorporated the minimum use fee provision of paragraph 9.4 of the 1970 aviation standards subject to amendment. The minimum use fee provision of paragraph 9.2 of the 1988 aviation standards is simply an amendment of the minimum use fee provision of paragraph 9.4 of the 1970 aviation standards. Bluebird is, therefore, subject to paragraph 9.2 of the 1988 aviation standards.

The judgments are affirmed.

In this opinion the other judges concurred.

       Bluebird does not challenge the trial court’s judgments with respect to its claim of breach of the implied covenant of good faith and fair dealing.

       Paragraph 9.2 of the 1970 aviation standards provides: “[Fixed base operators], whether located on City-owned property or on ac[jacent private property, as a precondition for the issuance of a permit to enter upon and use the runway-taxiway system, and Tenants, where applicable, shall agree to pay to the City quarterly (i) a fuel flowage fee equivalent to two cents per gallon of aviation gasoline and one cent per gallon for turbine fuel for all such fuel delivered or used from fuel storage facilities during each quarter; and (ii) an FBO airport Use Fee equivalent to two (2%) percent of the net sales of aircraft and accessories but other than fuel, such net sales to be the difference between the purchase price and sales price; (iii) two (2%) percent of gross income from sales of all services including, but not limited to aircraft maintenance (which includes labor and material), and flight instruction; (iv) two (2%) percent of gross income from rental and license income; (v) in cases where [a fixed base operator], as an agent for their customer, handles the repair and/or exchange of customers’ equipment and bills that customer at the same price as he was billed by the supplier or repairer, then that cost figure of such item or items mentioned in 9.2.iii may be excluded services and shall be reported separately.”

       Paragraph 9.4 of the 1970 aviation standard provides: “The following minimum annual FBO Airport use fees and fuel flowage fees shall apply to all FBOs (either on or off airport) for each category of service. The minimum annual fees are cumulative, i.e. the total minimum annual fee shall be the sum of all minimum annual fees for all categories of service for which a permit is issued. The minimum annual fee is not additional to fees established in Paragraph 9.2 above, but are the minimum that shall be paid in the event the fees payable under Paragraph 9.2 do not exceed the minimum fee:
      A. Fuel $1200.00 Annual
      B. Instruction and Rental $ 720.00 Annual
      C. Charter and Taxi $ 600.00 Annual
      D. Sales $ 600.00 Annual
      E. Repairs $ 600.00 Annual
      F. Avionics Sales and Service $ 600.00 Annual”

       Paragraph 9.2 of the 1988 aviation standards provides: “The following minimum annual Airport use fees shall apply to all FBO’s and their lessees and licensees and others operating [pursuant] to a permit issued hereunder for each category of service provided. The total minimum annual fee shall be the sum of all minimum annual fees for all categories of service for which a permit has been issued. The following are minimum permit fees.
      A. Fuel $ 500.00 Annual
      B. Instruction, Rental, Charter, $2,000.00 for 1988
      Taxi or Flying Club $3,000.00 for 1989
      C. Sales $2,000.00 for 1988
      $3,000.00 for 1989
      D. Repairs $2,000.00 for 1988
      $3,000.00 for 1989
      E. Avionics Sales and Service $2,000.00 for 1988
      $3,000.00 for 1989
      For the quarter ending March 31, June 30, September 30, and December 31, respectively, the fees due to the City shall be paid on or before January 1, April 1, July 1, and October 1, respectively. Interest shall accrue on the unpaid balance of all fees at a rate of 1.5% per month.”

       Our interpretation of the lease is also consistent with the rent provision of the lease. Paragraph seven mentions both paragraphs 9.1 and 9.2 of the aviation standards. Paragraph 9.1 pertains to rent. The first page of the lease sets forth the amount of rent that shall be paid. Therefore, the lease remains intact if we read paragraph seven as excluding paragraph 9.1 of the aviation standards from incorporation.


author: DUPONT, C. J.

text:
    ALAN SYLVESTRE v. UNITED SERVICES AUTOMOBILE ASSOCIATION CASUALTY INSURANCE COMPANY
    (14874)
    Dupont, C. J., and Lavery and Spear, Js.

      Argued April 16
    officially released July 16, 1996

      Peter M. Appleton, with whom was Peter T. Evans, for the appellant (plaintiff).

      Frederick M. O’Brien, for the appellee (defendant).

      Jeffrey S. Wildstein, and Joram Hirsch filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.

      Lisa M. Faris filed a brief for the Connecticut Defense Lawyers Association as amicus curiae.
   DUPONT, C. J.

The plaintiff, Alan Sylvestre, commenced this action against the defendant, United Services Automobile Association Casualty Insurance Company, seeking uninsured motorist benefits for injuries sustained when he was struck by an automobile while crossing the street. The trial court granted the defendant’s motion for summary judgment from which the plaintiff appeals. We affirm the judgment of the trial court.

The trial court found that “[t]he parties agree [d] that the vehicle struck the plaintiff, that the driver stopped and waited for several minutes while the plaintiff sat down and walked around, that the plaintiff believed he would not need medical attention, and that the plaintiff ultimately sent the driver on his way.” The plaintiff did not ask for the driver’s identification and did not note the license number of the driver’s automobile. The plaintiff claims that at the time of his accident, he maintained an automobile liability insurance policy issued by the defendant. The policy’s uninsured motorist provisions included coverage for injuries caused by a hit and run vehicle that hit a covered person or vehicle.

The defendant sought summary judgment claiming that the plaintiff could not sustain his burden of proof that he was injured by an uninsured motorist. The trial court granted the defendant’s motion for summary judgment and issued a memorandum of decision in which it determined: “It is difficult for this court to comprehend why an insurance company should have to pay for an insured’s injury when that insured chose to dismiss the driver because he was more concerned with getting to class on time. On these facts, it is undisputed that the driver was available to the plaintiff. The driver waited while the plaintiff assessed his injury, but the plaintiff affirmatively dismissed him. Although coverage is available when the driver truly cannot be identified, the insured cannot choose to make sure that the driver is unidentifiable. As this case shows, without eyewitnesses, the only time that information is available is at the time of the accident, and the claimant attested that his leg felt bruised before the driver left the scene. Because the plaintiff has not presented any evidence that supports his claim that the driver was unidentifiable or uninsured, the defendant’s motion for summary judgment is granted.” (Emphasis in original.)

We initially note the standard of review of a trial court decision granting a motion for summary judgment. Practice Book § 384 mandates that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” A “material fact” is a fact that will make a difference in the result of the case. Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). “The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Citations omitted; internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105-106, 639 A.2d 507 (1994). “[Construction of a contract of insurance presents a question of law for the [trial] court which this court reviews de novo.” Aetna Life & Casualty Co. v. Bulaong, 218 Conn. 51, 58, 588 A.2d 138 (1991).

Under the provisions of the plaintiffs automobile liability insurance policy, the plaintiff may be entitled to uninsured motorist coverage if he was struck by a “hit and run vehicle” whose operator or owner cannot be identified. The parties have concentrated on the issue of whether a claimant seeking uninsured motorist coverage as a result of a hit and run vehicle has a duty to exercise reasonable diligence to ascertain the identity and insurance status of the operator of such a vehicle. We conclude that the determinative issue in this appeal, as framed by the pleadings, is not whether the plaintiff had a duty to ascertain the identity and insurance status of the operator of the automobile that struck him, but rather whether the plaintiff was struck by a hit and run vehicle as set forth in the policy.

A review of the plaintiffs automobile liability insurance policy reveals that one of the components of the policy’s definition of an uninsured motor vehicle is a hit and run vehicle whose owner or operator cannot be identified. The term hit and run vehicle, however, is not defined in the definitions section or anywhere else in the plaintiffs automobile liability insurance policy.

“Under our law, the terms of an insurance policy are to be construed according to the general rules of contract construction.” Simses v. North American Co. for Life & Health Ins., 175 Conn. 77, 84, 394 A.2d 710 (1978). If the terms of an insurance policy are plain and unambiguous, courts cannot indulge in a forced construction that distorts the meaning of a term so as to accord a meaning other than that evidently intended by the parties. Kershaw v. Lumbermens Mutual Casualty Co., 2 Conn. Cir. Ct. 164, 166, 196 A.2d 817, cert. denied, 151 Conn. 720, 197 A.2d 937 (1963). “Policy language must be interpreted reasonably; words are to be given their ordinary meaning in order to deduce the intent of the parties.” Remington v. Aetna Casualty & Surety Co., 35 Conn. App. 581, 585, 646 A.2d 266 (1994).

We look to dictionary definitions to ascertain the ordinary meaning of a “hit and run vehicle.” See Wrin v. State, 234 Conn. 401, 406, 661 A.2d 1034 (1995). The term has meaning in common parlance. “Hit-and-run,” as it refers to the driver of a vehicle, has been defined as “guilty of leaving the scene of an accident without stopping to render assistance or to comply with legal requirements.” Webster’s Third New International Dictionary. It has also been defined as “[designating or involving the driver of a motor vehicle who drives on after striking a pedestrian or another vehicle.” American Heritage Dictionary (New College Ed. 1981). Because the driver of the vehicle that struck the plaintiff stopped to render assistance and because the plaintiff affirmatively acted to dismiss the driver from the scene of the accident, we conclude that the plaintiff was not struck by a hit and run vehicle. Accordingly, under the facts here, the policy’s provisions for uninsured motorist coverage are inapplicable and we, therefore, do not reach the issue of whether the plaintiff had a duty to ascertain the identity and insurance status of the operator of the automobile that struck him.

We concur with the trial court’s decision to grant the defendant’s motion for summary judgment, although on a different basis. This court may, however, affirm a trial court’s decision even though it is based on other grounds if the same result is required by law. Kelley v. Bonney, 221 Conn. 549, 592, 606 A.2d 693 (1992); Brunswick v. Inland Wetlands Commission, 25 Conn. App. 543, 554, 596 A.2d 463 (1991), rev’d on other grounds, 222 Conn. 541, 610 A.2d 1260 (1992).

The judgment is affirmed.

In this opinion the other judges concurred.

       Part C of the insurance policy issued by the defendant described the policy’s uninsured motorist coverage. The policy obligated the defendant to pay damages because of bodily injury arising “out of the ownership, maintenance or use of the uninsured motor vehicle." The policy defined the term “uninsured motor vehicle” as “a land motor vehicle or trailer of any type:
      “1. To which no bodily injury liability bond or policy applies at the time of the accident
      “2. For which the sum of the limits of liability under all bodily injury liability bonds or policies applicable at the time of the accident is less than the sum of the limits of liability for Uninsured Motorists Coverage applicable to each vehicle for this coverage under this policy.
      “3. Which is a hit and run vehicle whose operator or owner cannot be identified and which hits:

        “a. you or any family member;

      “b. a vehicle which you or any family member are occupying; or “c. your covered auto.
      “4. To which a bodily injury liability bond or policy applies at the time of the accident but the bonding or insuring company:
      “a. denies coverage; or
      “b. is or becomes insolvent.” (Emphasis added.)

       The parties stipulated that the owner or operator of the automobile that struck the plaintiff could not be identified after the operator left the scene of the accident.

       The trial court framed the issue as “whether an insured has any obligation to ascertain the identity of a tortfeasor before requesting uninsured motorist coverage from his own insurance company.”


author: LAVERY, J.

text:
    PATRICK MCMAHON v. AETNA LIFE AND CASUALTY COMPANY
    (14284)
    Foti, Lavery and Cretella, Js.
    Argued February 26
    officially released July 16, 1996

      Roger B. Calistro, with whom, on the brief, was Cynthia C. Bott, for the appellant (plaintiff).

      Michael J. O’Sullivan, for the appellee (defendant).
   LAVERY, J.

The plaintiff appeals from the judgment of the trial court granting the defendant’s motion for summary judgment. The plaintiff claims that the trial court improperly concluded that the plaintiffs action to recover under the underinsured motorist coverage provisions of his automobile insurance policy is time barred and not restored by § 3 of No. 93-77 of the 1993 Public Acts (P.A. 93-77). We conclude that the plaintiffs action is restored by § 3 of P.A. 93-77 and, therefore, reverse the judgment of the trial court.

The relevant facts and procedural history are not in dispute. On December 20, 1989, the plaintiff sustained personal injuries when his automobile was struck by a vehicle driven by John Preira. Preira was insured by Nationwide Insurance Company with liability policy limits of $20,000 per person and $40,000 per occurrence. The plaintiff was insured under a policy issued to him by the defendant. The plaintiffs policy provides coverage for, inter alia, damages and injuries sustained as a result of the negligence of the owner or operator of an underinsured motor vehicle, and such benefits will be paid only after the limits of liability under any applicable bodily injury liability policies have been exhausted. The plaintiffs policy also contains a provision requiring all claims and suits for underinsured motorist benefits to be brought within two years of the accident.

On October 8, 1992, the plaintiff notified the defendant that Preira’s liability insurance policy had been exhausted and that the plaintiff was pursuing an under-insured motorist claim against the defendant. Thereafter, the defendant denied coverage claiming that the plaintiff was not entitled to recover underinsured motorist benefits under the policy. On October 15,1993, the plaintiff commenced this action to recover underinsured motorist benefits. On June 29,1994, the defendant filed a motion for summary judgment claiming that the plaintiffs claim was time barred under General Statutes (Rev. to 1993) § 38a-336 as amended by P.A. 93-77. 3The trial court granted the defendant’s motion on the ground that the plaintiffs action was untimely because it was not brought within 180 days from the date of exhaustion of the limits of liability under Preira’s policy as required by § 38a-336 (g).

The dispositive issue is whether the plaintiffs claim for underinsured motorist benefits is restored by operation of § 3 of P.A. 93-77. In Bayusik v. Nationwide Mutual Ins. Co., 233 Conn. 474, 485, 659 A.2d 1188 (1995), our Supreme Court held that a claim filed under an insurance policy governed by § 3 of P.A. 93-77 is subject to the six year statute of limitations applicable to contract actions. In order to fall within the purview of § 3, the plaintiff must have had an underinsured motorist claim pending on December 8,1992, or brought prior to May 20, 1993. We conclude that the plaintiff had an underinsured motorist claim pending on December 8, 1992, and that his action is therefore restored by operation of § 3 of P.A. 93-77.

The defendant argues that the plaintiffs claim does not come within the savings clause of P. A. 93-77 because there was no underinsured motorist claim pending on December 8, 1992, or brought prior to May 20, 1993. We disagree and hold that the plaintiffs notice to the defendant that Preira’s policy had been exhausted and that he was pursuing an underinsured motorist claim constitutes a pending claim for purposes of P.A. 93-77. “Our construction of § 3 of P.A. 93-77 finds support both in its legislative history and in the policy that its passage was intended to promote. Section 3 of P.A. 93-77 was enacted to provide relief to insureds who, in good faith reliance on a complex, and apparently misleading statutory scheme had failed to file a claim for uninsured or underinsured motorist benefits within the two year contractual limitation period, thereby forfeiting their right to do so under our decisions in McGlinchey v. Aetna Casualty & Surety Co., 224 Conn. 133, 617 A.2d 445 (1992), and Hotkowski v. Aetna Life & Casualty Co., 224 Conn. 145, 617 A.2d 451 (1992). . . . The statutory construction urged by the plaintiffs, therefore, would promote the fundamental objective of the legislature, namely, to restore to those insureds the right to recover uninsured or underinsured motorist benefits in cases that had not been finally concluded prior to May 20, 1993. By contrast, the interpretation propounded by the defendant would frustrate that legislative purpose by limiting the number of injured victims eligible for relief under § 3 of P.A. 93-77. Furthermore, as remedial legislation, P.A. 93-77 must be afforded a liberal construction in favor of those persons, the plaintiffs among them, whom the legislature manifestly intended to benefit. See Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 623, 642 A.2d 1186 (1994).” Stevens v. Aetna Life & Casualty Co., 233 Conn. 460, 468, 659 A.2d 707 (1995).

We conclude that the plaintiffs claim is governed by § 3 of P.A. 93-77 and is subject to a six year statute of limitations applicable to contract actions. General Statutes § 52-576 (a). The trial court, therefore, improperly granted the defendant’s motion for summary judgment by concluding that the plaintiffs claim was time barred under General Statutes § 38a-336.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       See General Statutes (Rev. to 1989) § 38-175c, now revised and recodified as § 38a-336.

       General Statutes (Rev. to 1993) § 38a-336, as amended by § 2 of P.A. 93-77, provides in pertinent part: “No insurance company doing business in this state may limit the time within which any suit may be brought against it or any demand for arbitration on a claim be made on the uninsured or underinsured motorist provisions of an automobile liability insurance policy to a period of less than three years from the date of accident, provided, in the case of underinsured motorist claim the insured may toll any applicable limitation period (1) by notifying such insurer prior to the expiration of the applicable limitation period, in writing, of any claim which the insured may have for underinsured motorist benefits and (2) by commencing suit or demanding arbitration under the terms of the policy not more than one hundred eighty days from the date of exhaustion of the limits of liability under all automobile bodily injury liability bonds or automobile insurance policies applicable at the time of the accident by settlements or final judgments after any appeals.” All references to § 38a-336 include its amendment by § 2 of P.A. 93-77.

       The trial court rendered its judgment prior to our Supreme Court’s decisions in Bayusik v. Nationwide Mutual Ins. Co., 233 Conn. 474, 659 A.2d 1188 (1995), Stevens v. Aetna Life & Casualty Co., 233 Conn. 460, 659 A.2d 707 (1995), and Serrano v. Aetna Ins. Co., 233 Conn. 437, 664 A.2d 279 (1995). These cases all involve the proper interpretation of P.A. 93-77.

       Section 3 of P. A. 93-77 provides: “No uninsured or underinsured motorist claim or action pending on December 8, 1992, or brought after said date and prior to the effective date of this act, in which a settlement has not been reached or a final judgment has not been rendered prior to the effective date of this act, shall fail by reason of any contractual limitation in a motor vehicle insurance policy which limits the time within which such claim shall be submitted to arbitration or such action shall be commenced to a period of time less than that allowed under section 38a-336 of the general statutes, as amended by section 2 of this act.”


author: SCHALLER, J.

text:
    ALAN E. SILVER v. STATEWIDE GRIEVANCE COMMITTEE
    (15012)
    Foti, Landau and Schaller, Js.

      Argued March 18
    officially released July 16, 1996

      Maureen A. Horgan, assistant bar counsel, for the appellant (defendant).

      William F. Gallagher, with whom, on the brief, was Barbara L. Cox, for the appellee (plaintiff).
   SCHALLER, J.

The defendant statewide grievance committee appeals from the judgments of the trial court sustaining two appeals by the plaintiff Alan Silver and vacating a reprimand issued by the defendant to the plaintiff in each case. The defendant claims that the trial court improperly (1) sustained the plaintiffs appeals without articulating findings pursuant to Practice Book § 27N (f) that substantial rights of the plaintiff had been prejudiced, (2) determined that the plaintiff had no ethical duty to notify his clients’ no-fault insurance companies of his receipt of settlement proceeds on behalf of his clients or to safeguard the insurance companies’ rights to the proceeds and (3) determined that the plaintiff was precluded by rule 1.6 of the Rules of Professional Conduct from notifying the insurance companies of the receipt of the settlement proceeds. We affirm the judgments of the trial court.

The following facts are undisputed. In the first case, the plaintiff represented Samuel Jones on a personal injury claim arising out of a motor vehicle accident. Safeco Insurance Company (Safeco) provided Jones with $5000 in basic reparations benefits in relation to the accident. Safeco advised the plaintiff that it expected to be reimbursed for the benefits from the proceeds of any recovery made by Jones. The plaintiff later settled Jones’ claims and received $85,000 in settlement proceeds on behalf of Jones.

The plaintiff advised Jones that Jones had a legal responsibility to reimburse Safeco, but Jones insisted that the plaintiff distribute to him the full amount of the settlement proceeds. The plaintiff then distributed the full amount of the settlement proceeds to Jones without notifying Safeco of the settlement. Safeco learned of the settlement approximately two years after the plaintiff had disbursed the proceeds to Jones. Safeco then demanded reimbursement of the benefits. When the plaintiff asserted that he had no liability for the reimbursement, Safeco complained in writing to the defendant.

On March 2, 1992, the local grievance panel for the New Haven Judicial District (local panel) found that there was insufficient evidence to support a finding of probable cause that the plaintiff was guilty of misconduct and forwarded the file to the defendant with the recommendation that the complaint be dismissed. On June 18, 1992, the defendant reversed the local panel and referred the matter to a reviewing committee. On December 27, 1993, the reviewing committee issued a proposed decision recommending that the plaintiff be reprimanded for violating rule 1.15 (b) of the Rules of Professional Conduct. On January 20,1994, the defendant adopted the proposed decision of the reviewing committee and reprimanded the plaintiff.

In the second case, the plaintiff represented Marcy La Banca on a personal injury claim arising out of a motor vehicle accident. United Services Automobile Association Casualty Insurance Company (USAA) provided La Banca with $5000 in basic reparations benefits in relation to the accident. USAA notified the plaintiff that it was entitled to reimbursement of the benefits if La Banca’s case was settled. The plaintiff settled La Banca’s claim arising from the accident for $15,000. The plaintiff distributed the full amount of the settlement proceeds to La Banca without notifying USAA. After USAA learned of the settlement, it demanded reimbursement. The plaintiff asserted that he was not hable for such a reimbursement. On January 28, 1993, USAA, informed the defendant of the situation.

On May 4, 1993, the local panel again found that there was insufficient evidence to support a finding of probable cause and recommended that the complaint be dismissed. On August 19,1993, however, the defendant reversed the local panel and referred the matter to a reviewing committee. On July 6, 1994, the reviewing committee incorporated by reference its proposed decision in the Jones case and again recommended that the plaintiff be reprimanded. On August 18, 1994, the defendant adopted the proposed decision of the reviewing committee and reprimanded the plaintiff.

The plaintiff appealed both of the defendant’s decisions to the trial court, which “held that Safeco [and USAA] did not have ‘interest^]’ under rule 1.15 (b) which entitled [them] to notice from [the plaintiff] of his receipt of the settlement proceeds” and “that Safeco [and USAA were] not ‘entitled to receive’ reimbursement of its no-fault payments from the settlement proceeds in [the plaintiffs] hands. Ergo, [the plaintiff] was not obligated, under the rule, to pay any portion of the settlement proceeds to Safeco [and USAA].”

I

The defendant first claims that the trial court improperly failed to articulate findings that substantial rights of the plaintiff had been prejudiced by the decisions to reprimand the plaintiff. The defendant argues that, pursuant to Practice Book § 27N (f), only upon such a finding may the trial court reverse the decision of the defendant.

The plaintiff brought his appeal of the defendant’s reprimand pursuant to § 27N. While the trial court’s memorandum of decision does not specifically cite § 27N, “[i]t is important to recognize that a claim of error cannot be predicated on an assumption that the trial court acted incorrectly. . . . Rather, we are entitled to assume, unless it appears to the contrary, that the trial court . . . acted properly, including considering the applicable legal principles. . . . The general rule that a judgment, rendered by a court with jurisdiction, is presumed to be valid and not clearly erroneous until so demonstrated raises a presumption that the rendering court acted only after due consideration, in conformity with the law and in accordance with its duty.” (Citations omitted; internal quotation marks omitted.) Rosenblit v. Danaher, 206 Conn. 125, 134, 537 A.2d 145 (1988); see also State v. Thompson, 197 Conn. 67, 81, 495 A.2d 1054 (1985); Bank of Boston Connecticut v. Avon Meadow Associates, 40 Conn. App. 536, 543, 6712 A.2d 1310 (1996).

Where an appellant claims that a trial court failed to make a necessary ruling, “[i]t is the responsibility of the appellant to provide an adequate record for review.” Practice Book § 4061; Dime Savings Bank of Wallingford v. Cornaglia, 33 Conn. App. 549, 553 n.8, 636 A.2d 1370, cert. granted, 229 Conn. 907, 640 A.2d 120 (1994), appeal withdrawn, October 17, 1994. The defendant argues that it fulfilled its responsibility by filing a motion for articulation with the trial court requesting the court to articulate its decision as to “what, if any, substantial rights of the plaintiff-appellee the court found to have been prejudiced, pursuant to Practice Book § 27N (f).” The trial court denied the motion. The defendant then did nothing further to perfect the record. The defendant, however, “ ‘could have sought review by this court of the adequacy of the trial court’s response pursuant to Practice Book § 4054.’ ” Id., 554, quoting Holmes v. Holmes, 32 Conn. App. 317, 319, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993). Because of the defendant’s failure to follow the rules established to guarantee the presentation of an adequate record for review, we assume that the trial court acted properly.

II

The defendant claims next that the trial court improperly determined that the plaintiff did not have an ethical duty to notify the insurance companies of the receipt of the settlement proceeds to safeguard the proceeds claimed by the insurance companies. The defendant argues that pursuant to General Statutes (Rev. to 1993) § 38a-369 (b) the insurance companies each had an interest in the respective settlement proceeds when the plaintiff received them and, therefore, the defendant was required to safeguard their interests pursuant to rule 1.15 (b). We disagree.

The review of decisions of the grievance committee is limited to the standard set forth in Practice Book § 27N (f). “ ‘[I]n reviewing a decision of the statewide grievance committee to issue a reprimand, neither the trial court nor this court takes on the function of a fact finder. Rather, our role is limited to reviewing “the record to determine if the facts as found are supported by the evidence contained within the record and whether the conclusions that follow are legally and logically correct.” Pinsky v. Statewide Grievance Committee, [216 Conn. 228, 234, 578 A.2d 1075 (1990)]. Additionally, in a grievance proceeding, the standard of proof applicable in determining whether an attorney has violated the [Rules] of Professional [Conduct] is clear and convincing evidence. Statewide Grievance Committee v. Presnick, [215 Conn. 162, 171-72, 575 A.2d 210 (1990)].’ ” Lewis v. Statewide Grievance Committee, 235 Conn. 693, 698, 669 A.2d 1202 (1996), quoting Weiss v. Statewide Grievance Committee, 227 Conn. 802, 812, 633 A.2d 282 (1993).

Rule 1.15 (b) provides that: “Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.” The preliminary issue before this court, therefore, is whether Safeco and USAA had an interest in or were entitled to receive a portion of the respective settlement proceeds prior to the plaintiff’s distribution of those funds to his clients.

General Statutes (Rev. to 1993) § 38a-369 (b) provides in pertinent part: “Whenever a person who receives basic reparations benefits for an injury recovers damages, either by judgment or settlement, from the owner, registrant, operator or occupant of a private passenger motor vehicle with respect to which security has been provided under sections 38a-19 and 38a-363 to 38a-388, inclusive, or from a person or organization legally responsible for his acts or omissions, the insurer is entitled to reimbursement from the claimant to the extent that said basic reparations benefits have been paid, minus an amount which represents the insurer’s contribution toward attorney’s fees for the collection of basic reparations benefits. . . . The insurer shall have a lien on the claimant’s recovery for the amount to which he is entitled for such reimbursement; provided no such lien shall attach until such time as the proceeds of such recovery are in the possession and, control, of such claimant.” (Emphasis added.)

The legislature added the final phrase of § 38a-369 (b), “provided no such lien shall attach until such time as the proceeds of such recoveiy are in the possession and control of such claimant”; Public Acts 1981, No. 81-836, § 2; in response to Unigard Ins. Co. v. Tremont, 37 Conn. Sup. 596, 598-601, 430 A.2d 30 (1981), which held that under the prior version of the statute an insurer could enforce the statutory lien against the insured’s attorney. See Shelby Mutual Ins. Co. v. Della, Ghelfa, 200 Conn. 630, 640, 513 A.2d 52 (1986). By amending the statute, the legislature clearly specified that the statutory lien by which Safeco and USAA claim interests in the settlement proceeds did not attach while the proceeds were in the plaintiffs hands. See id., 641, citing 24 H. R. Proc., Pt. 24, 1981 Sess., p. 7862.

Rule 1.15 does not create third party interests, but, rather, requires an attorney to safeguard only those interests that otherwise exist at law. By amending § 38a-369 (b), the legislature insulated attorneys from the liability of reimbursing basic reparations benefits by providing that an insurer’s lien does not attach to a claimant’s recovery until the claimant has possession and is in control of the recovery. While settlement proceeds were in the plaintiffs control, therefore, Safeco and USAA did not have an interest in the proceeds. Their interests in the Jones and La Banca cases arose only after the plaintiff had distributed the proceeds to his clients. We conclude that the plaintiff did not have an ethical duty to notify the insurance companies of his receipt of the settlement proceeds or to deliver a portion of the proceeds to the insurance companies.

Ill

The defendant claims finally that the trial court improperly concluded that Rule 1.6 of the Rules of Professional Conduct precluded the plaintiff from notifying the insurance companies of the receipt of settlement proceeds pursuant to rule 1.15 (b). Rule 1.6 (a) requires a lawyer to hold in confidence information relating to the representation of a client unless the client consents after consultation. The rule provides an exception, however, for “disclosures that are impliedly authorized to carry out the representation.” Rules of Professional Conduct 1.6 (a). The defendant argues that because rule 1.15 (b) required the plaintiff to notify the insurance companies, the plaintiff fell within the exception of rule 1.6 (a). As discussed previously, however, rule 1.15 (b) did not require the plaintiff to notify the insurance companies. We, therefore, find no merit in the defendant’s claim that such a disclosure was impliedly authorized to carry out the representation of the client.

The judgments are affirmed.

In this opinion the other judges concurred.

       The proposed decision provided as follows: “It is our conclusion that upon receipt by the [plaintiff] of the settlement funds on behalf of his client, the funds should be considered to be in the hands of the insurance company’s insured and, thus, subject to the insurance company’s lien. Furthermore, we conclude that the [plaintiff] had a continuing obligation to protect the interests of the insurance company pursuant to the Rules of Professional Conduct even if he may not be civilly liable for failing to protect and honor the hen. We conclude that the [plaintiff] had an ethical obligation to hold the funds until the dispute over them between the insurance company and the insured was resolved, even if the insurance company could not, under the statutory scheme, prevail on a civil action against the attorney to recover the funds in question.
      “We find by clear and convincing evidence that the [plaintiff] failed to timely notify Safeco of his receipt of the settlement funds and safeguard those funds until the right to them was appropriately resolved, in violation of rule 1.15 (b) of the Rules of Professional Conduct. It is therefore, our recommendation that the [plaintiff] be reprimanded by the Statewide Grievance Committee.”

       The record reveals that USAA sent a letter describing the situation to the Connecticut Bar Association, which forwarded the letter to the defendant.

       See footnote 1.

       Practice Book § 27N (f) provides: “Upon appeal, the court shall not substitute its judgment for that of the statewide grievance committee as to the weight of the evidence on questions of fact. The court shall affirm the decision of the committee unless the court finds that substantial rights of the respondent have been prejudiced because the committee’s findings, inferences, conclusions, or decisions are: (1) In violation of constitutional, Practice Book or statutory provisions; (2) in excess of the authority of the committee; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, rescind the action of the statewide grievance committee or take such other action as may be necessary. For purposes of further appeal, the action taken by the superior court hereunder is a final judgment.”

       Practice Book § 4054 provides in pertinent part: “Any party aggrieved by the action of the trial judge as regards rectification of the appeal or articulation under Sec. 4051 may, within ten days of the issuance of notice of the order sought to be reviewed, make a written motion for review to the court, to be filed with the appellate clerk, and the court may, upon such a motion, direct any action it deems proper. If the motion depends upon a transcript of evidence or proceedings taken by a court reporter, the procedure set forth in Sec. 4053 shall be followed. . . .”

       Public Acts 1993, No. 93-297, § 28, repealed General Statutes (Rev. to 1993) § 38a-369, effective January 1, 1994.

       See footnote 4.

       “The usual and practical theory is that an attachment creates a lien, or a quasi lien of a limited nature, on the property attached. It is unquestionably a security for the debt, places the attached property in custodia legis, and gives the attaching [party] a special property interest therein. It is a direct appropriation by authority of law of specific property of the debtor, for the purpose of satisfying the demand . ...” 6 Am. Jur. 2d 877, Attachment and Garnishment § 454, citing Meyers v. C. I. T. Corp., 132 Conn. 284, 43 A.2d 742 (1945), and Coit v. Sistare, 85 Conn. 573, 84 A. 119 (1912).

       See part II of this opinion.