author: O’Connell, J. Borden, J.,

text:
    State of Connecticut v. One 1981 BMW Automobile
    (5566)
    Borden, Bieluch and O’Connell, Js.
    Argued November 13, 1987—
    decision released August 23, 1988

      JohnM. Massameno, assistant state’s attorney, with whom was Roseanne Wagner, legal intern, for the appellant (state).

      Joseph F. Keefe, with whom, on the brief, was David A. Moraghan, for the appellee (defendant owner).
   O’Connell, J.

The state appeals from the judgment of dismissal of an in rem forfeiture action brought pursuant to General Statutes § SLSSg. The state claims that the trial court erred (1) in finding that the information contained in the search and seizure warrant underlying this action was “stale” and did not support a determination of probable cause, and (2) in holding that the in rem action could not be sustained without an allegation of criminal activity on behalf of the vehicle’s owner. We find error.

The factual background of this case is long and convoluted. In 1985, the state’s first attempt to have this vehicle forfeited ended with a decision by this court that those proceedings were invalid for lack of personal jurisdiction. State v. One 1981 BMW Automobile, 5 Conn. App. 540, 500 A.2d 961 (1985) (BMWI). The sequence of events leading up to BMW I are detailed in that opinion and will not be repeated here. Significant developments subsequent to the earlier decision are as follows. On January 9, 1986, slightly more than one month after the decision in BMW I, a second search and seizure warrant was issued for the seizure of the BMW. The vehicle was seized by the state police the following day and a summons was served on the defendant, Daniel D. Skuret, the current owner of the automobile. A summons was also served on Russell Kuskowski who was the BMW’s record owner at the time of the initiation of BMW I and who was represented to be its owner when BMW I was argued in this court. Kuskowski had been represented at those proceedings, as well as in the criminal charges brought against him at that time, by Skuret, who is a member of the Connecticut bar. Subsequent to his arrest on the criminal charges, Kuskowski assigned his interest in the BMW to Skuret in payment of legal fees. The propriety of this transfer will be discussed in greater detail in part IV of this opinion, infra. Because Kuskowski no longer had an interest in the automobile, the trial court dismissed the present action as to him.

On January 17, 1986, the defendant appeared and filed a motion to dismiss the action claiming, inter alia, that (1) the search and seizure warrant was not based on probable cause due to its reliance on four year old information, and (2) at the time the warrant was executed, there was no allegation of criminal activity on the part of the defendant, the vehicle’s current owner. The court granted the motion and dismissed the forfeiture action. The state has appealed.

I

The state’s first claim of error involves the court’s determination that the search and seizure warrant issued was not grounded in probable cause because the affidavit concerned activities that had occurred in 1982, and had grown “stale” by January, 1986, when the second warrant was executed. The state argues that an allegation that property has been used in the commission of a crime cannot become stale. We agree.

Under both state and federal constitutional law, a search and seizure warrant shall not issue but upon probable cause. U.S. Const., amend. IV; Conn. Const., art. I § 7. “ ‘ “Through the fourteenth amendment the fundamental federal constitutional safeguards as to the issuance of warrants embodied in the fourth amendment, as interpreted and applied in decisions of the United States Supreme Court, are made obligatory upon the states. Ker v. California, 374 U.S. 23, 33, 83 S. Ct. 1623, 10 L. Ed. 2d 726 [1963].” ’ State v. Jackson, 162 Conn. 440, 443, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S. Ct. 198, 34 L. Ed. 2d 121 (1972); see State v. Licari, 153 Conn. 127, 214 A.2d 900 (1965).” State v. Bember, 183 Conn. 394, 409, 439 A.2d 387 (1981).

“We have stated that ‘[p]robable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.’ State v. DeChamplain, 179 Conn. 522, 528-29, 427 A.2d 1338 (1980).” (Emphasis omitted.) State v. Ferguson, 185 Conn. 104, 111, 440 A.2d 841 (1981). Thus, a finding of probable cause to search involves a bipartite analysis and adequate information is required for each determination. See State v. DeChamplain, supra.

To fulfill these requirements, the state included information in its warrant and supporting affidavit to the effect (1) that the vehicle sought to be seized “had been used” as the means of committing the crime of “Possession of Cocaine with Intent to Sell, § 21a-277 (a) [and] Sale of Cocaine, § 2la-277 (a),” and (2) that the vehicle could be found at an automotive repair business located in Ansonia or in the possession of the owner, Skuret. The issuing judicial authority found these allegations supported by facts set forth in the warrant application and sufficient to establish probable cause.

The trial court found the allegations of the criminal use of the vehicle to be stale. There is no claim of a contemporaneity problem with the second prong of the inquiry, i.e., the information regarding the locus of the property at the time of the execution of the warrant.

The staleness doctrine involves the concept that the passage of time can diminish the reliability of information provided in a search warrant request. See State v. Carbone, 172 Conn. 242, 250, 374 A.2d 215, cert. denied, 431 U.S. 967, 97 S. Ct. 2925, 53 L. Ed. 2d 1063 (1977). The doctrine, however, concerns itself with the location of the items to be seized and the likelihood that those items are located in the place alleged by the warrant application. See, e.g., Sqro v. United States, 287 U.S. 206, 53 S. Ct. 138, 77 L. Ed. 260 (1932); Durham v. United States, 403 F.2d 190, 193-94 n.3 (9th Cir. 1968); see also State v. Carbone, supra; State v. Garcia, 7 Conn. App. 354, 356, 508 A.2d 824 (1986); State v. Burgos, 7 Conn. App. 265, 269-70, 508 A.2d 795 (1986).

In many circumstances, the passage of time may affect the likelihood that the items sought have been moved. In the present case there is no question of the timeliness of the information in the affidavit regarding the current locus of the automobile.

We conclude, however, that the trial court’s application of the staleness doctrine to the first prong of the probable cause analysis, (i.e., the connection between the property and the alleged criminal activity) was misguided.

Where, as here, facts have been alleged which constitute probable cause that certain events have taken place, the mere passage of time cannot diminish that conclusion. Stale does not simply mean old. An analogy can be drawn between the first prong of the probable cause analysis for a search warrant and the probable cause analysis for an arrest warrant. Just as probable cause to arrest, once found, cannot be dissipated by the passage of time, probable cause to believe that property has been used in connection with a crime similarly cannot be diminished. We hold that, under the facts of this case, the trial court erred in applying the staleness doctrine to the first prong of the probable cause analysis.

II

The state also contends that the trial court erred in concluding that, without an allegation of the defendant’s involvement in criminal activity, the forfeiture action could not lie. We agree.

“General Statutes § 54-33g ‘provides for a civil action in rem for the condemnation and forfeiture of the [property] which was used in violation of the law. ... In such an action the guilt or innocence of the owner of the [property] is not in issue. The only issue is whether the [property] was used in violation of law. This follows from the nature of the action which is one against the res, an action in rem.’ State v. Bucchieri, 176 Conn. 339, 345, 407 A.2d 990 (1978), quoting Alcorn v. Alexandrovicz, 112 Conn. 618, 623, 153 A. 786 (1931).” (Emphasis in original.) State v. Connelly, 194 Conn. 589, 592, 483 A.2d 1085 (1984).

This rule may indeed be harsh in some situations and, to counteract its claimed unfairness, certain exceptions to the rule have been made and constitutional protections often have been invoked. For example, the statute itself provides an exception to forfeiture for the holder of a “bona fide mortgage, assignment of lease or rent, [or of a] lien or security interest.” General Statutes § 54-33g (c). See footnote 1, supra. In addition, the United States Supreme Court has noted two instances where a forfeiture statute may violate the due process rights of the property’s owner: “ ‘[I]t would be difficult to reject the constitutional claim of an owner whose property subjected to forfeiture had been taken from him without his privity or consent. . . . Similarly, the same might be said of an owner who proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property. . . .’ State v. Connelly, supra, 593 n.4.” State v. One 1977 Buick Automobile, 196 Conn. 471, 486, 493 A.2d 874 (1985), quoting Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 689, 94 S. Ct. 2080, 40 L. Ed. 2d 452 (1974).

The status of the defendant in the present case does not bring him within any of the elucidated exceptions nor within any other exception of which we can conceive. In fact, as the recipient of Kuskowski’s interest in the automobile, at a point in time after the alleged criminal activity and with knowledge of both that criminal activity and the state’s attempts to have the vehicle adjudged a nuisance, the “innocence” of this defendant is in question. For us to allow the transfer of the vehicle’s ownership to purge the criminal taint of the uses to which it had been put would be to thwart the obvious purpose of the statutory provision.Under the defendant’s contention, any property used in the commission of a crime could be exempted from the in rem forfeiture statute through the simple expedient of a laundering transaction. This result would further neither the spirit nor the letter of our forfeiture statute.

Ill

In his motion to dismiss this action in the trial court, the defendant claimed that he had been served with a defective summons. The trial court did not address this claim in its memorandum of decision, relying instead on the issues previously discussed in this opinion. In his brief, however, the defendant again raises this claim, presumably as either an alternative ground for affirmance or as an adverse ruling for which he seeks review. We decline to review this claim for two reasons.

First, the defendant failed in two respects to comply with our rules of practice. Practice Book § 4013 (a) (1) provides: “If the appellee wishes to (A) present for review alternate grounds upon which the judgment may be affirmed, or (B) present for review adverse rulings or decisions of the court which should be considered on appeal in the event the appellant is awarded a new trial . . . that appellee shall file a preliminary statement of issues within fourteen days from the filing of the appellant’s preliminary statement of the issues.” (Emphasis added.) The defendant did not file a preliminary statement of issues. The defendant also failed to comply with Practice Book § 4066 (a), which requires that the appellee’s brief contain “[a] counter statement of any issue involved as to which the appellee disagrees with the statement of the appellant or a statement of any other grounds which were properly raised by an appellee under Sec. 4013.” The defendant did not include a statement of issues in his brief and, even if he had, the claim he now raises is neither a “counter statement” of an appellant’s issue nor an issue “properly raised . . . under Sec. 4013.” The defendant’s failure to follow the dictates of our Practice Book provides sufficient grounds for our refusal to review the claim now raised by the defendant. See, e.g., State v. Hudson, 14 Conn. App. 463, 471. n.4, 541 A.2d 534 (1988); White Oak Corporation v. Department of Consumer Protection, 12 Conn. App. 251, 257 n.11, 530 A.2d 641 (1987); see also Cristofaro v. Planning & Zon ing Commission, 11 Conn. App. 260, 265-66, 527 A.2d 255 (Bieluch, J., dissenting), cert. denied, 204 Conn. 810, 528 A.2d 1156 (1987).

Second, we find fatal the defendant’s failure to request an articulation pursuant to Practice Book § 4051 regarding the trial court’s disposition of this claim at trial. Without a clear finding by the trial court of the facts which underlie the defendant’s claim, we do not know the true nature of the issue we are asked to review. The defendant has clearly failed to carry his burden in properly presenting a claim for our review. See Leo v. Leo, 197 Conn. 1, 3-4, 495 A.2d 704 (1985); Vaiuso v. Vaiuso, 2 Conn. App. 141, 149, 477 A.2d 678, cert. denied, 194 Conn. 807, 482 A.2d 712 (1984).

We conclude that the defendant’s failure to identify this issue in a preliminary statement of issues, his failure to request an articulation of the trial court’s disposition of the claim, his failure to file a statement of issues in his brief, and his introduction of the issue for the first time in his appellee’s brief constitutes appeal by ambuscade. We refuse to consider this issue. See Practice Book § 4013 (a) (1).

IV

At oral argument before this court, the parties were questioned regarding the propriety of the 1982 transfer of the BMW from its then owner, Kuskowski, to the defendant. Although this issue is not dispositive of the substantive claims presented in this appeal, it raises questions which we cannot ignore.

The following chronology can be gleaned from the relevant records and files. Kuskowski was arrested on May 3, 1982. On the following day, a search and seizure warrant was issued for the BMW and an in rem summons was served on Kuskowski, thereby initiating the first forfeiture action brought pursuant to General Statutes § 54-33g. An appearance was filed on behalf of Kuskowski in the criminal case by the law offices of the present defendant on May 11,1982. On July 16, 1982, Kuskowski executed an assignment of “all right, title and interest that he may have” in the BMW to his attorney, the defendant.

Kuskowski thereafter went to trial, before a jury, and was convicted of the crimes with which he was charged on February 2, 1983. On March 1, 1983, the defendant filed his appearance in the in rem action on behalf of the “owner” of the vehicle and also filed a motion to dismiss the original forfeiture action on behalf of “the owner, Russell Kuskowski.” On May 3, the trial court found the BMW to be a nuisance pursuant to General Statutes § 54-33g and ordered it forfeited to the state. That forfeiture was the subject of our decision in BMW I.

The issue raised by the foregoing information is a possible violation of Disciplinary Rule 5-103 (A) of our state Code of Professional Responsibility. In pertinent part, that rule provided that “[a] lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation he is conducting for a client, except that he may: (1) Acquire a lien granted by law to secure his fees or expenses. (2) Contract with a client for a reasonable contingent fee in a civil case.”

It is generally accepted that this provision was originally a response to the common law disapproval of champerty and maintenance; Rules of Professional Conduct Rule 1.8 comment; however, it is also currently recognized as an attempt to avoid unnecessary conflicts of interest between attorneys and clients. “The possibility of an adverse effect upon the exercise of free judgment by a lawyer on behalf of his client during litigation generally makes it undesirable for the lawyer to acquire a proprietary interest in . . . the outcome of the litigation. . . .” Code of Professional Responsibility EC 5-7; see also C. Wolfram, Modern Legal Ethics § 8.13.

As they appear from the various documents before us, the facts strongly suggest that the defendant’s acceptance of Kuskowski’s interest in the BMW was in violation of this rule. It is not within the province of this court, however, to determine whether or not a violation has in fact occurred. This court, therefore, will refer the matter to the statewide bar counsel pursuant to Practice Book § 27F for investigation and such action as that authority deems proper.

V

The possible ethical violation discussed in the concurring opinion did not occur in the course of argument in the present case, but during the argument in BMW I which took place in 1985. We do not condone any misrepresentation which may have been made during the hearing of the earlier case.

There is error, the judgment is set aside and the case is remanded for further proceedings according to law.

In this opinion Bieluch, J., concurred.

Borden, J.,

concurring. I agree with the majority opinion, as far as it goes. I write separately because in my view it does not go far enough in bringing to light an apparent violation of the Code of Professional Responsibility by the defendant occurring in the presence of this court.

Part IV of the majority opinion properly notes a possible violation of the code by the defendant in acquiring his interest in the car which is the subject matter of this litigation, and it properly notes that the matter will be referred to the statewide bar counsel, because the appropriate grievance panel has jurisdiction over ethical violations not occurring in the presence of the court. See Practice Book §§ 29, 30 and 31 (a). It does not note, however, that in the course of the argument of this appeal, facts were disclosed to us which constitute a possible violation of the code occurring in the presence of this court, over which that committee does not have jurisdiction. Id.

State v. One 1981 BMW Automobile, 5 Conn. App. 540, 500 A.2d 961 (1985) (BMW I), was briefed, argued and decided on the explicit representation by Daniel D. Skuret, the attorney for Russell Kuskowski in that case, that Kuskowski was the owner of the car and that Skuret represented him as his attorney. That is quite clear from even a cursory reading of BMW I, from a reading of Kuskowski’s brief in that case, which I have reviewed, and from the facts stated in the majority opinion in this case. We have now learned, in the course of this appeal, that since July 16,1982, Kuskowski had no interest whatsoever in the car, and that on that date Skuret acquired ownership of the car as a legal fee. Skuret, however, continued to represent both to the trial court in 1983, and to this court in 1985, that Kuskowski was the owner of the car.

Disciplinary Rule 7-102 (A) (4) of the code, entitled “Representing a Client Within the Bounds of the Law,” in effect and governing Skuret’s conduct before this court in 1985, provided: “(A) In his representation of a client, a lawyer shall not: . . . (4) knowingly use perjured testimony or false evidence.” Rule 3.3 of the Rules of Professional Conduct contain an essentially similar provision. Skuret’s course of conduct in representing to this court that Kuskowski was the owner of the car, when in fact Skuret himself was its owner, raises a possible ethical violation, flowing from his duty as an attorney in the course of BMW I to be candid and honest to this tribunal.

Of striking significance is the strong suggestion from the records of BMW I and this case that Skuret knowingly misrepresented to this court, in the course of BMW I, that Kuskowski was the car’s owner, when in fact Kuskowski was not its owner, and when Skuret’s ownership itself may have been in violation of the canons of ethics. This, it seems to me, is a possible violation of Disciplinary Rule 7-102 (A) (4), occurring in the presence of this court.

Furthermore, by that misrepresentation Skuret induced this court to decide BMW I, indeed to decide it in his favor, when, had we been properly informed that Kuskowski no longer had any interest in the car, arguably we would have dismissed the appeal as moot. It is a fundamental principle of appellate jurisdiction that a property owner must maintain his interest in the property which is the subject matter of litigation throughout an appeal in order to maintain his standing to appeal. See Groesbeck v. Sotire, 1 Conn. App. 66, 68-69, 467 A.2d 1245 (1983). So far as we were informed in BMW I, the owner of the car was Kuskowski. It was his appeal as owner that we decided. Certainly, had we known in 1985 that the true owner of the car was Skuret, the attorney purportedly representing Kuskowski, who in fact no longer had any interest in whether the car was forfeited to the state, the disposition of BMW I may well have been different. Indeed, had we dismissed BMW I as moot, the present case would never have been litigated.

This course of conduct, however, cannot be addressed by a grievance panel, because it occurred in the presence of the court. See Practice Book §§ 29, 30 and 31 (a). It is my belief that this conduct should be addressed by the entire Appellate Court, or by some panel or tribunal acting as an arm of this court. Regrettably, the Appellate Court has determined to ignore this possible affront to the integrity of its appellate process. I disagree with that determination.

       “[General Statutes] See. 54-33g. summons to owner on seizure of PROPERTY. IN REM ACTION FOR ADJUDICATION AS NUISANCE. DISPOSITION OF property, (a) When any property believed to be possessed, controlled, designed or intended for use or which is or has been used or which may be used as a means of committing any criminal offense has been seized as a result of a search incident to an arrest, a warrantless arrest or a search warrant, which the state claims to be a nuisance and desires to have destroyed or disposed of in accordance with the provisions of this section, the judge or court issuing the warrant or before whom the arrested person is to be arraigned shall, within ten days after such seizure, cause to be left with the owner of, and with any person claiming of record a bona fide mortgage, assignment of lease or rent, lien or security interest in, the property so seized, or at his usual place of abode, if he is known, or, if unknown, at the place where the property was seized, a summons notifying the owner and any such other person claiming such interest and all others whom it may concern to appear before such judge or court, at a place and time named in such notice, which shall be not less than six nor more than twelve days after the service thereof, then and there to show cause why such property should not be adjudged a nuisance and ordered to be destroyed or otherwise disposed of as herein provided. Such summons may be signed by a clerk of the court or his assistant and service may be made by a local or state police officer. It shall describe such property with reasonable certainty and state when and where and why the same was seized.
      “(b) If the owner of such property or any person claiming any interest in the same appears, he shall be made a party defendant in such case. Any state’s attorney or assistant state’s attorney may appear and prosecute such complaint.
      “(c) If the judge or court finds the allegations made in such complaint to be true and that the property has been possessed, controlled or designed for use, or is or has been or is intended to be used, with intent to violate or in violation of any of the criminal laws of this state, he shall render judgment that such property is a nuisance and order the same to be destroyed or disposed of to a charitable or educational institution or to a governmental agency or institution provided, if any such property is subject to a bona fide mortgage, assignment of lease or rent, lien or security interest, such property shall not be so destroyed or disposed of in violation of the rights of the holder of such interest. When any money or valuable prize has been seized upon such warrant and condemned under the provisions of this section, such money or valuable prize shall become the property of the state, provided any such property, which at the time of such order is subject to a bona fide mortgage, assignment of lease or rent, lien or security interest shall remain subject to such mortgage, assignment of lease or rent, lien or security interest. When any property or valuable prize has been declared a nuisance and condemned under this section, the court may also order that such property be sold by sale at public auction in which case the proceeds shall become the property of the state; provided, any person who has a bona fide mortgage, assignment of lease or rent, lien or security interest shall have the same right to the proceeds as he had in the property prior to sale. Final destruction or disposal of such property shall not be made until any criminal trial in which such property might be used as evidence has been completed.
      “(d) If the judge or court finds the allegations not to be true or that the property has not been kept with intent to violate or in violation of the criminal laws of this state or that it is the property of a person not a defendant, he shall order the property returned to the owner forthwith and the party in possession of such property pending such determination shall be responsible and personally liable for such property from the time of seizure and shall immediately comply with such order.
      “(e) Failure of the state to proceed against such property in accordance with the provisions of this section shall not prevent the use of such property as evidence in any criminal trial.”

       Technically, the in rem proceeding was against the automobile although we refer to Skuret as the defendant in this action. See footnote 1, supra.

       The vehicle has been returned to the possession of the defendant subject to specific conditions, pursuant to an order issued by the trial court on December 12, 1986.

       In May of 1982, a police officer discovered the original owner of the vehicle, Kuskowski, in the BMW using cocaine. Pursuant to Kuskowski’s arrest, the vehicle was searched and more cocaine, drug paraphernalia and cash were found. See State v. One 1981 BMW Automobile, 5 Conn. App. 540, 541, 500 A.2d 961 (1985). These facts provided the foundation for the state’s initiation of both forfeiture actions. Kuskowski was subsequently convicted of the charges brought against him. See State v. Kuskowski, 200 Conn. 82, 510 A.2d 172 (1986).

       Because we do not find the staleness doctrine applicable in this case, we need not venture into definitions of what may constitute an acceptable interval of time between the gathering of information for the affidavit and the issuance of the warrant.

       Indeed, the surveillance which provided information of the BMW’s location was conducted on January 8 and 9,1986. The warrant issued was dated January 9, 1986.

       Probable cause to arrest exists if: “(1) there is probable cause to believe a crime has been committed; and (2) there is probable cause to believe that the person to be arrested committed that crime.” State v. DeChamplain, 179 Conn. 522, 529, 427 A.2d 1338 (1980).

       Although we find that this information cannot grow stale, a protracted or undue delay in effectuating a seizure for forfeiture purposes may implicate the owner’s constitutional right to due process. See United States v. Kemp, 690 F.2d 397, 401-402 n.5 (4th Cir. 1982); but see United States v. One 1951 Douglas DC-6 Aircraft, 667 F.2d 502 (6th Cir. 1981).

       This holding applies only to those factual circumstances wherein the state alleges that property “has been used” for criminal purposes. Where the allegation is that the property “is” being used or “may be used,” those facts may very well be susceptible to a claim of staleness.

       The sworn document by which the assignment was made was introduced by the defendant in the second forfeiture action.

       The Code of Professional Responsibility, effective October 1,1972, has been recently supplanted by the Rules of Professional Conduct, which became effective on October 1,1986. Because the activities in question here occurred prior to 1986, however, the Code of Professional Responsibility governs the defendant’s conduct.
      It is important to note, however, that the provision at issue here also appears in the newly adopted Rules almost verbatim. Rules of Professional Conduct Rule 1.8 (j). Furthermore, this prohibition also appeared in the predecessor to the Code of Professional Responsibility, the Canons of Professional Ethics, which provided guidelines for attorney conduct from 1908 to 1962. See Canons of Professional Ethics Canon 10. (“The lawyer should not purchase any interest in the subject matter of the litigation which he is conducting.”)

       “Maintenance at common law signifies an unlawful taking in hand or upholding of quarrels, or sides, to the disturbance or hindrance of common right. The maintaining of one side, in consideration of some bargain to have part of the thing in dispute, is called champerty. Champerty therefore is a species of maintenance.” Richardson v. Rowland, 40 Conn. 565, 570 (1873).


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    Adele P. Barca v. Angelo Barca
    (5754)
    Daly, Bieluch and Foti, Js.
    Argued February 18—
    decision released August 23, 1988

      Wesley W. Horton, with whom were Susan M. Cormier and, on the brief, Claudia J. Marchak, for the appellant (defendant).

      Robert V. Cimmino, for the appellee (plaintiff).
   Foti, J.

The defendant husband appeals from a judgment dissolving the parties’ marriage and granting certain other relief. The sole issue raised by this appeal is whether the trial judge exhibited a preconceived bias against the defendant and, as a result, should have, sua sponte, recused herself from the proceedings. We find no error.

The plaintiff filed a complaint and the defendant filed a cross complaint; each sought the dissolution of the twenty year marriage and conveyance of the other’s undivided half interest in the family home. In addition, the plaintiff requested custody of and support for the minor child, alimony and the assignment of half of all of the defendant’s assets. In the pleadings, both parties agreed that the marriage had irretrievably broken down; neither party alleged that the other was at fault. At trial, however, each party claimed that the other was to blame for the breakdown of the marriage.

After a two day trial to the court, in an oral decision the court found that the marriage had broken down irretrievably due to the defendant’s physical abuse of the plaintiff. As to the financial awards, the court assigned the defendant’s undivided half interest in the real estate, including its furnishings, to the plaintiff and declined to grant either party alimony, counsel fees, or any other relief sought by the parties.

The defendant claims, for the first time on appeal, that the trial judge’s actions throughout the course of the trial evidenced a preconceived bias against him, and that the judge should have, sua sponte, disqualified herself. The defendant concedes that this issue was not properly preserved at trial. The defendant argues, however, that the trial court’s actions in this proceeding were so extraordinary that he was denied a fair trial and, therefore, in the interests of justice this court should invoke its discretionary authority and find plain error pursuant to Practice Book § 4185. Our review of the record, however, reveals no instance of judicial conduct “ ‘so obvious that it affect[ed] the fairness and integrity of and public confidence in the judicial proceedings’ [which] . . . ‘resulted] in an unreliable verdict or a miscarriage of justice.’ ” Smith v. Czescel, 12 Conn. App. 558, 563, 533 A.2d 223 (1987), quoting State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).

We note at the outset that Canon 3C (1) of the Code of Judicial Conduct “requires a judge to disqualify himself or herself in any proceeding in . which his or her impartiality might be questioned.” LaBow v. LaBow, 13 Conn. App. 330, 333, 537 A.2d 157 (1988). “[A]s a minister of justice, a trial judge ought to be ‘cautious and circumspect in his language and conduct.’ ” LaBow v. LaBow, supra, quoting Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 501, 101 A.2d 500 (1953). The trial judge should conduct a trial with the highest degree of impartiality. Id. An accusation that a judge was prejudiced against one party in his or her role as an impartial arbitrator is very serious and “strikes at the very core of judicial integrity and undermine[s] public confidence in the established judiciary.” Felix v. Hall-Brooke Sanitarium, supra, 501. An accusation of this magnitude requires a full review of the record. Szypula v. Szypula, 2 Conn. App. 650, 653, 482 A.2d 85 (1984).

“Disqualification of a trial judge is not dependent upon proof of actual bias. See Dacey v. Connecticut Bar Assn., 184 Conn. 21, 441 A.2d 49 (1981). The ‘appearance as well as the actuality of impartiality on the part of the trier’ will constitute proof of bias sufficient to invoke disqualification. Cameron v. Cameron, [187 Conn. 163, 170, 444 A.2d 915 (1982)]. The controlling standard is whether a reasonable person who is aware of all the circumstances surrounding the judicial proceeding would question the judge’s impartiality. Papa v. New Haven Federation of Teachers, 186 Conn. 725, 745-46, 444 A.2d 196 (1982); Keppel v. BaRoss Builders, Inc., 7 Conn. App. 435, 440-41, 509 A.2d 51 (1986).” LaBow v. LaBow, supra, 334.

As a general rule, even in cases alleging judicial bias, this court will not consider the issue on appeal where the party failed to make the proper motion for disqualification at trial. Practice Book § 4185; Cameron v. Cameron, supra, 168; Trapp v. Trapp, 6 Conn. App. 143, 145, 503 A.2d 1187 (1986); Logical Communications, Inc. v. Morgan Management Corporation, 4 Conn. App. 669, 670, 496 A.2d 239 (1985). Such nonaction by a party at trial “ ‘can be construed as the functional equivalent of “consent in open court” to [the judge’s] presiding over the trial.’ Timm v. Timm, 195 Conn. 202, 205, 487 A.2d 191 (1985). A litigant must raise the question of disqualification in a timely and appropriate manner; Pavel v. Pavel, 4 Conn. App. 575, 576 n.2, 495 A.2d 1113 (1985); Jazlowiecki v. Cyr, 4 Conn. App. 76, 78, 492 A.2d 516 (1985); Szypula v. Szypula, [supra, 653]; or the claim will be deemed to have been waived. Verissimo v. Verissimo, 3 Conn. App. 222, 224, 486 A.2d 1134 (1985).” Logical Communications, Inc. v. Morgan Management Corporation, supra, 670. The rationale for this rule is that parties cannot be allowed “ ‘to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial. . . .’ ” Timm v. Timm, supra.

Only in exceptional circumstances will this court invoke its discretionary authority to review claims not properly preserved at trial under the plain error doctrine. Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 517, 508 A.2d 415 (1986); Cameron v. Cameron, supra; Smith v. Czescel, supra. The defendant argues that the facts of this case are exceptional and, despite his failure to object, present a situation, similar to the Cameron case, where our Supreme Court found, sua sponte, that recusal was required.

In Cameron, the court invoked the plain error doctrine and found that the trial court’s conduct was “such a ‘serious departure from [the] high standards’ of judicial conduct that it should have declared a mistrial sua sponte.” Trapp v. Trapp, supra, 145, quoting Cameron v. Cameron, supra, 169-70. In the Cameron case, prior to the defendant taking the stand to testify or presenting any evidence, the trial court accused him of “perpetrating or attempting to perpetrate a fraud” on the court; Cameron v. Cameron, supra, 165; and of lying under oath at a deposition. Id., 165-66 n.2. When, at the trial court’s request, the defendant took the stand to testify, the court, without asking him any questions, immediately placed him in contempt. Id., 167. In addition to exhibiting a prejudice against the defendant, the court demonstrated distrust for the defendant’s attorney.

In support of his claim of judicial bias, the defendant in this case points to numerous instances in the transcript where the trial court commented, asked questions and made evidentiary rulings. We have reviewed the record and the entire transcript, and conclude that only the series of questions and comments regarding the defendant’s financial record merits discussion.

In the defendant’s affidavit, he listed a debt of $13,896 which he stated was owed to his mother. At the trial, there was substantial testimony, most of it conflicting, about the defendant’s characterization of this money as a loan. It was in relation to the inconsistent testimony about the source and nature of this debt that the defendant complains the trial judge’s conduct demonstrated bias.

The defendant cites the following examples in support of this argument. First, during the cross-examination of the plaintiff, the trial court characterized the money the defendant had received from his father in the following manner: “The check that you’re talking about was for this is [sic] no show New York job. That’s not wages. That’s graft.” Second, during the defendant’s testimony on cross-examination, the court expressed its opinion that, “there is something smelling in Denmark.” Third, during the cross-examination of the defendant’s last witness, his father, Joseph Barca, the court in attempting to clarify the conflicting testimony, told the witness that, in her judgment, the defendant had “lied.”

The defendant’s first two examples deserve little discussion. In prior cases involving similar comments by trial courts, we have found such claims of prejudice and bias without merit. Logical Communications, Inc. v. Morgan Management Corporation, supra; (the trial court’s referral to defendant’s proffered defense as a “sham,” made prior to his presentation of any evidence, was directed at the merits of the case and did not exhibit a predisposition toward the parties); LaBow v. LaBow, supra, 337 (trial court’s statement to a party that “I’m beginning to question very much your sincerity,” not found to be prejudicial); Keppell v. BaRoss Builders, Inc., supra, 439-40 (court’s comment that the defendant was “playing fast and loose with the court” did not constitute prejudice).

The third example, in which the court stated her opinion that the defendant had lied, although facially similar to the Cameron case, is distinguishable. While it is true that the trial court’s comments did, as in the Cameron case, indicate an opinion as to the truthfulness of the defendant; LaBow v. LaBow, supra, 339; this is not a case in which the trial court exhibited “a preconceived view of the credibility of a witness who- had not yet testified before the trier and of an attitude of skepticism concerning any person represented by [this particular] counsel.” (Emphasis added.) Cameron v. Cameron, supra, 170. In Cameron, the trial court’s comments were made at the outset of the trial before the defendant had an opportunity to present any evidence or testify on his own behalf and related to a pretrial deposition which the judge did not witness. In addition to exhibiting bias against the defendant, the court in Cameron stated on the record that, from past experience, it was distrustful of defendant’s counsel. The record in this case is wholly inapposite to Cameron. Here, the court’s comment that the defendant lied occurred at the end of the trial, during the testimony of the defendant’s last witness. The court had already heard testimony from the defendant and had before it three conflicting stories regarding the source and nature of the debt listed in the defendant’s affidavit.

“ ‘[T]he alleged bias and prejudice, to be disqualifying, must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his [or her] participation in the case.’ ” (Emphasis added.) Szypula v. Szypula, supra, 655, quoting United States v. Grinnell Corporation, 384 U.S. 563, 583, 86 S. Ct. 1698, 16 L. Ed. 2d 778 (1966). Moreover, to support a claim of disqualification, the judge’s comments must express a personal bias against the parties and not merely be “directed at the merits of the defense claimed based on information presented to him [or her] during a trial on the merits.” Logical Communications, Inc. v. Morgan Management Corporation, supra, 670-71 n.2.

There is no claim in this case that the judge entered the courtroom with a preconceived view of this case, the parties or the attorneys involved. The judge’s comments did not stem from an “extrajudicial source” but were made after the court had heard almost all of the evidence in the case, after the defendant had testified, and at a point when the court had heard inconsistent stories as to the debt listed in the defendant’s affidavit. The trial court’s statements related to the defendant’s credibility and therefore were directed to the merits of the case rather than to the parties.

Although we find that the trial judge did not act in a partial manner, her conduct in this case was not entirely consistent with the high standards of judicial demeanor required in her role as neutral arbitrator. While the trial court has a duty to ensure that “no falsehood or other fraud is perpetrated in court”; Cameron v. Cameron, supra, 170; and may in its discretion question witnesses; LaBow v. LaBow, supra, 335; the trial judge also has a duty to maintain a calm demeanor, the decorum of the courtroom and avoid any action which might suggest partiality. State v. Gordon, 197 Conn. 413, 425, 504 A.2d 1020 (1985). A judge, however, “is a human being, and not the type of unfeeling robot some would expect the judge to be. Such a display of exasperation . . . falls far short of a reasonable cause for disqualification for bias or prejudice under Canon 3 [C (1)] of the Code of Judicial Conduct.” Keppel v. BaRoss Builders, Inc., supra, 444. While the trial judge’s actions were “less than circumspect, we cannot find that the judgment was based on something other than the facts presented at trial.” Trapp v. Trapp, supra, 145. After reviewing the transcript and judgment in this case, therefore, we find the trial court’s comments were not based on an extrajudicial source, but were related to the merits of this case. Under these circumstances, sua sponte disqualification was not required.

There is no error.

In this opinion the other judges concurred.

       Alimony was not requested in the defendant’s cross complaint. At trial, however, the defendant asked the court to award alimony to him.

       The plaintiff and the defendant had two children during the course of their twenty year marriage. By the time the case reached trial in December, 1986, the youngest child had reached the age of majority and, therefore, the issue of custody was not before the court.

       At trial, the plaintiff relinquished her claim to alimony.

       Canon 3C of the Code of Judicial Conduct provides in pertinent part: “Disqualification. (1) A judge should disqualify himself [or herself] in a proceeding in which his [or her] impartiality might reasonably be questioned, including but not limited to instances where: (a) he [or she] has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding . . . .”

       The procedural requirements for raising a claim of disqualification have been prescribed by this court. When a litigant seeks to have a judge disqualified, he or she must state on the record to the judge whose disqualification is sought, the facts, which if true, “give fair support to his [or her] claim. If those facts, taken as true, give . . . fair support [to that claim], the party is entitled to an evidentiary hearing by another judge.” Szypula v. Szypula, 2 Conn. App. 650, 655-56, 482 A.2d 85 (1984).

       In ruling that the case be continued so that the defendant could obtain information requested by the trial court, the court said to the defendant’s counsel, “and you have had trouble with this Court before in some of your clients absconding.” When defense counsel objected, stating that he had never acted in an “unprofessional” manner, the court responded, “[tjhat’s questionable.” Cameron v. Cameron, 187 Conn. 163, 165, 444 A.2d 915 (1982).

       The defendant points to various evidentiary rulings to support his claim. We have examined these rulings and cannot say that they manifest an abuse of discretion nor can we say that exclusion of such evidence indicates prejudice or bias against the defendant.

       On cross-examination, the plaintiff testified that the money listed by the defendant as a loan was not a loan. The plaintiff stated that the money derived from a “secondary job that the defendant shared with his father,” Joseph Barca, because his father was “retired and could only receive so much money during the year.”
      The defendant’s sister, Natalie Barca, testified that her father loaned the defendant money from his part-time job because “they couldn’t make ends meet.”
      The defendant next took the stand and testified on direct examination that he received money every month from his father “to help me get along financially.” When asked about this money on cross-examination, the defendant testified that while he stated in his affidavit that the debt was owed to his mother, the source of the money was actually from a job that he shared with his father in an every other year sequence.
      The defendant’s last witness was his father, Joseph Barca, who testified that the money was a loan and not wages from a job that he shared with his son.

       This comment by the trial judge cannot be read in isolation. On cross-examination, the plaintiff was asked about checks that she and the defendant received from the defendant’s father. In response, the plaintiff described the source and nature of those checks as follows: “You’re referring to a secondary job. It was a no show job that his father got through a political friend and it was shared between Angelo [the defendant] part of the year because he [the defendant’s father] was retired and could only receive so much money during the year.” (Emphasis added.) Sometime later, also during cross-examination of the plaintiff, the following exchange took place:
      “Q. [Defense Counsel] Mrs. Barca, how do you explain paying all of the household bills based on your limited income and his income—
      “Mr. Cimmino: Objection, Your Honor.
      “Q. (Continuing)—if you did not use both funds?
      “Mr. Cimmino: Objection, Your Honor.
      “The Court: What do you mean by both funds?
      “Q. The funds, the wages from your husband and the wages from yourself.
      “A. I-
      “The Court: Just a minute. She didn’t say anything about the wages. You’re mis—
      “Mrs. Marchak: Your Honor, she stated previously—
      “The Court: The check that you’re talking about was for this is [sic] no show New York job. That’s not wages. That’s graft.
      “The Witness: That’s right.
      “The Court: The wages that he earned, she said he would give her some money and with that money she with her other money would pay the bills and that has been her total testimony.
      “Mrs. Marchak: Your Honor, I’m sorry. I misunderstood.”
      The defendant argues that the court’s comment that the wages were “graft” for a “no show” job demonstrates bias against him. When viewed in context, it is apparent that this comment was made in response to an objection and was a restatement of the plaintiff’s characterization of this money made in an effort to clarify the plaintiff’s earlier testimony. By using the word “graft,” the court merely reduced the plaintiff’s testimony to a more concise dictionary term. The word “graft” is defined as “[t]he acquisition of money, position or other profit by . . . questionable means (as by . . . taking advantage of a public office . . . pay for work not done or service not performed) . . . . ” Webster, Third New International Dictionary. While we agree that the court’s use of the term “graft” was inappropriate, we do not agree that, under the circumstances in which it was made, this comment evidences that the trial court was partial.

       The trial court’s comments occurred during the following exchange:
      “The Court: There are allegations here your son has filed an affidavit with this Court as to his finances and in it he put down a balance due to Margaret Barca of $13,896. He says that’s an error. It should have been you, Joseph Barca.
      “The Witness: Right.
      “The Court: He has said to this Court that—And your daughter, Natalie, has testified and they’re in conflict. This is what your daughter said. Your daughter said she sent the checks for you to Mr. and Mrs. Barca, that it was a loan, and that it totaled $13,896 from 1982 to 1985.
      “The Witness: Right.
      “The Court: Your son said the following: Yes, it was a loan. He’s also said the following: It’s not a loan. That it was a job that he shared with you, that part-time job. That job was in your name, but he shared it with you. And that he was merely paying you what was his share of that job. Now, you cannot have it two ways. You cannot be an employee and not an employee. You cannot have a check issued in one name as to an employee and another person also being the employee entitled to the check.
      “I specifically asked him why he would borrow $400 a month from you when you’re retired. He said he needed the money. But he was making more money than you and your wife put together. He was making, between he and his wife, over $30,000 a year. He has testified the expenses were not extraordinary neither as to medical nor everyday expenses and that they had really, between the two of them, more than enough to support the family. But he said—and he contradicted himself. He said he needed money to pay the bills and that is why he asked you, a retired person, for the money. He also said, and it’s in conflict, the man said out the other side of his mouth that no, it really wasn’t a loan as such because it was a job he shared with you and, therefore, he was entitled to the money, but since they put the checks in your name, you endorsed them and sent them to him.

        “Now, Mr. Barca, I have in front of me a couple of liars. Mr. Barca, you’re seventy-three years of age. I don’t think you would lie ... .
      “The Court: Was that a loan?
      “The Witness: Well, as far as I’m concerned, it was a loan because he had difficulty with his expenses. And I guess they used to go on vacations to Florida quite often whenever the time would arise and I know that he was hard pressed for money. And that’s not a lie.
      “The Court: Okay. Then what about the statement that it was a job that he shared with you?
      “The Witness: I think he got mixed up there. That job—
      “The Court: I definitely think there’s something wrong. I told him so.
      “The Witness: That job was my job and it was a little part-time job and it was extra money for me.
      “The Court: I don’t blame you, Mr. Barca. I’m just telling you I think your son’s a liar. He lied in court. Your daughter went along with him that he needed money—was borrowing money. She went right along.”


author: Dupont, C. J.

text:
    Charles McGowan v. General Dynamics Corporation/Electric Boat Division et al. Sebastian Semataro v. General Dynamics Corporation/Electric Boat Division et al.
    (5910)
    (5913)
    Dupont, C. J., Borden and Foti, Js.
    Argued March 3—
    decision released August 23, 1988

      Lucas D. Strunk, with whom, on the brief, was James L. Pomeranz, for the appellants (defendants in both cases).

      Stephen C. Embry, filed a brief for the appellee (Charles McGowan, plaintiff in the first case).

      Carolyn P. Kelly, for the appellee (Sebastian Semataro, plaintiff in the second case).
   Dupont, C. J.

The single question presented in this combined appeal is whether an award received pursuant to the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. §§ 901 through 950 (1986), is to be wholly credited against a subsequent award arising out of the same injury under the Connecticut Workers’ Compensation Act, General Statutes §§ 31-275 through 31-355a. We hold that the award under the LHWCA must be so credited.

The plaintiffs, Charles McGowan and Sebastian Semataro, sustained injuries during the course of their employment with the named defendant, the Electric Boat Division of the General Dynamics Corporation. Both plaintiffs filed claims pursuant to the LHWCA for the injuries suffered and were awarded compensation benefits under that federal act. The plaintiff McGowan received a total award of $41,006.76, comprised of $20,378.50 in temporary total disability benefits, $9792.82 in permanent partial disability benefits, a $10,000 lump sum settlement and an overpayment of $835.45. The plaintiff Semataro received a total award of $56,994.06, comprised of $29,805.42 in temporary total disability benefits and $27,188.64 in permanent partial disability benefits.

The plaintiffs subsequently filed claims under the Connecticut Workers’ Compensation Act based on the same injuries for which compensation had been awarded under the LHWCA. The parties stipulated as to each plaintiff that Connecticut had jurisdiction to hear the claims, that compensable injuries had been suffered, and that compensation benefits had been awarded under the LHWCA. It was further stipulated that the total award to which McGowan was eligible under the Connecticut Workers’ Compensation Act was $33,932.49, comprised of $30,492.39 in temporary total disability benefits and permanent partial disability benefits, and $3440.10 for permanent scarring. It was also stipulated that Semataro was eligible under the Connecticut act for a total award of $46,723.95, comprised of $43,489.95 in temporary total disability benefits and permanent partial disability benefits, and $3234 for scarring pursuant to General Statutes § 31-308 (d). Thus, the total benefits awarded each plaintiff under the LHWCA exceeded the total benefits available under Connecticut law.

The plaintiffs claim that, in addition to the total benefits awarded under the LHWCA, they are also entitled to the benefits under the Connecticut act allocated for scarring, as no such benefits were received under the LHWCA. The defendants argue that the total amount awarded under the LHWCA should be credited against the total award allowable under the Connecticut act. As the former exceeded the latter, the defendants reason that any additional award under the Connecticut act, including that for scarring, was improper. In contrast, the plaintiffs argue that credit for the award under the LHWCA should be determined by comparing the amount awarded in each specific category of benefits under each act rather than by comparing the total awards. The plaintiffs claim that since no award was made for scarring under the LHWCA, no credit was applicable to the scarring benefits awarded under the Connecticut act and, therefore, the latter should be awarded to the plaintiffs in addition to the total amount awarded under the LHWCA. The plaintiffs do not dispute, however, that the benefits awarded under the LHWCA for temporary total and permanent partial disability should be credited against the award available under the Connecticut act in those specific categories of benefits.

The workers’ compensation commission awarded McGowan and Semataro, respectively, $3440.10 and $3234, which amounts represented benefits for scarring pursuant to § 31-308 (d). The defendants appealed the awards to the compensation review division, which affirmed the awards of the commissioner. This appeal followed. We find error.

In Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 100 S. Ct. 2432, 65 L. Ed. 2d 458, reh. denied, 448 U.S. 916, 101 S. Ct. 37, 65 L. Ed. 2d 1179 (1980), the United States Supreme Court held that there is concurrent jurisdiction between state workers’ compensation acts and the LHWCA for, as in this case, land based injuries sustained by maritime workers. The Supreme Court made clear, however, that its recognition of concurrent jurisdiction did not sanction double recovery. “[TJhere is no danger of double recovery under concurrent jurisdiction since employers’ awards under one compensation scheme would be credited against any recovery under the second scheme.” (Emphasis added.) Id., 725 n.8. Footnote 8 in Sun Ship, cited Calbeck v. Travelers Ins. Co., 370 U.S. 114, 82 S. Ct. 1196, 8 L. Ed. 2d 368 (1962), in which “the full amount of all payments made by the employer [under the Louisiana Compensation Act] was credited against the award [under the LHWCA], and no impermissible double recovery [was] possible.” (Emphasis added.) Id., 131.

The crux of the plaintiffs’ argument is that the category by category credit scheme which they advance does not result in double recovery. They argue that as no benefits for scarring were awarded the plaintiffs under the LHWCA, it follows that an award of benefits for scarring under the Connecticut act does not constitute double recovery. We find no indication in the Sun Ship decision, however, that the Supreme Court envisioned a credit system by which each specific category of benefits awarded under each act is to be compared. The language used in the Sun Ship and Calbeck decisions, addressing the crediting of awards in a system of concurrent jurisdiction, indicates that any amount awarded under one scheme is to be credited in full against any award available under the second scheme.

The category by category credit system, if followed in this case, would allow the plaintiffs to recover total awards greater than that available under either the federal or state act alone. Congress amended the LHWCA in 1972 to include coverage of land based injuries sustained by maritime workers; 33 U.S.C. § 903 (a); in order- to upgrade the benefits available for such injuries to a federal minimum in light of a “paucity of relief under state compensation laws.” (Emphasis omitted.) Sun Ship, Inc. v. Pennsylvania, supra, 723. In articulating a system of concurrent jurisdiction, the Supreme Court recognized that “if state remedial schemes are more generous than federal law, concurrent jurisdiction could result in more favorable awards for workers’ injuries than under an exclusively federal compensation system. But we find no evidence that Congress was concerned about a disparity between adequate federal benefits and superior state benefits.” (Emphasis in original.) Id., 724. We find this passage expressive of the Supreme Court’s conclusion that if a total state award exceeded an award under the LHWCA, Congressional intentions were not offended by allowing a claimant to reap the benefits of the superior state award.

The plaintiffs propose, however, that they should be awarded the superior federal benefits as well as the superior benefits awarded under the Connecticut act. If the plaintiffs’ proposition were true, the plaintiffs would receive awards for scarring which the federal scheme would not allow, thereby obtaining total awards greater than that-available under either act alone. We find no indication that Congress, by amending the LHWCA to upgrade benefits to a federal minimum, or the Supreme Court, in articulating a scheme of concurrent jurisdiction, envisioned a system of crediting by which a claimant would receive a greater recovery than that available under either act alone. See A. Larson, “The Conflict of Laws Problem Between the Longshoremen’s Act and State Workmen’s Compensation Acts,” 45 S. Cal. L. Rev. 699, 736-37 (1972) (“So far as the employer is concerned, the worst that can happen to him is . . . [that he] ends by giving the employee the benefit of the Act that happens to be more favorable.”).

Furthermore, the plaintiffs’ position is inconsistent with the 1984 amendments to the LHWCA, which, inter alia, added the following paragraph to the federal act: “Notwithstanding any other provisions of law, any amounts paid to an employee for the same injury, disability, or death for which benefits are claimed under this chapter pursuant to any other workers’ compensation law . . . shall be credited against any liability imposed by this chapter.” 33 U.S.C. § 903 (e) (applicable to claims pending and filed after September 28, 1984). It is at best paradoxical to suggest that Congress intended that “any amounts paid” under a state act be credited against “any liability imposed” by the LHWCA, but that, as the plaintiffs argue, awards first received pursuant to the LHWCA should be offset against subsequent state awards on a category by category basis. See C. Davis, “Concurrent Compensation Systems and the Exclusive Remedy Rule,” 4 Connecticut Workers’ Compensation Review Opinions, No. 1, pp. vi-x (1988).

We are also unable to reconcile the credit system advocated by the plaintiffs with the exclusive remedy provision of the Connecticut Workers’ Compensation Act. General Statutes § 31-284 provides that the Connecticut act is a covered worker’s exclusive remedy against the employer for work-related death or injury. See Blancato v. Feldspar Corporation, 203 Conn. 34, 37-38, 522 A.2d 1235 (1987); Greene v. Metals Selling Corporation, 3 Conn. App. 40, 42-43, 484 A.2d 478 (1984). A system of concurrent jurisdiction under which a claimant may receive the maximum award allowable under either of two acts is consistent with the exclusive remedy rule because the higher award constitutes the claimant’s exclusive remedy. Under the category by category credit scheme, however, a claimant might recover awards of some categories of Connecticut benefits concurrently with awards of benefits in other categories under the LHWCA. Such a system is in direct conflict with Connecticut’s exclusive remedy rule and, therefore, it is difficult to envision that such a credit scheme was intended under the Connecticut act. See C. Davis, supra, pp. vii-viii.

The plaintiffs contend, however, that Connecticut’s interest in compensating injured employees to the fullest extent possible; Simaitis v. Flood, 182 Conn. 24, 32, 437 A.2d 828 (1980); compels our adoption of the category by category credit system. It is disingenuous to argue that our holding today infringes upon the state’s legitimate interest in securing maximum compensation for claimants when the plaintiffs’ awards under the LHWCA far exceed that available under the Connecticut act. The state’s interest in compensating claimants for disfigurement or scarring is not infringed upon in any meaningful way under the facts of this case. Regardless of where an employee first seeks an award of benefits, he or she is entitled to the maximum amount allowed to an individual under either comprehensive legislative scheme.

The plaintiffs cite Landry v. Carlson Mooring Service, 643 F.2d 1080 (5th Cir.), cert. denied, 454 U.S. 1123, 102 S. Ct. 970, 71 L. Ed. 2d 109 (1981), and the majority decision in Bouford v. Bath Iron Works Corporation, 514 A.2d 470 (Me. 1986), cert. denied, 479 U.S. 1065, 107 S. Ct. 951, 93 L. Ed. 2d 1000 (1987), in support of their position. In Landry, the plaintiff was allowed to seek a supplemental award under the LHWCA following an award of benefits under the Texas Workmen’s Compensation Act. Under Texas law, attorney’s fees received in workers’ compensation proceedings consist of a percentage of a claimant’s total recovery. The Court of Appeals for the Fifth Circuit held that a plaintiff’s entire recovery under the Texas act, exclusive of that portion allocated for attorney’s fees, must be credited against any subsequent recovery under the LHWCA. The court noted that the amount allocated for attorney’s fees under the Texas award did not serve as compensation for the plaintiff’s injury and, therefore, that the purpose of crediting—the avoidance of double recovery for compensable injuries—would not be served by crediting the percentage of the Texas award allocated for attorney’s fees. In reaching this conclusion, the court emphasized that the plaintiff would not in fact receive that portion of the Texas award allocated for attorney’s fees. “[T]he LHWCA award should be diminished only by [the] state compensation the plaintiff actually realizes.” Landry v. Carlson Mooring Service, supra, 1088.

We find the Landry decision to be inapposite to the present case. Attorney's fees were held not to be credited against a subsequent award under the LHWCA because such fees did not constitute a separate category of damages for the plaintiff’s injury. Such a holding is far from an endorsement of a system by which each separate category of damages is to be offset. Landry does mandate that the total award for damages under the Texas act must be credited against the total damage award under the LHWCA, which is entirely consistent with our holding. We also note that, in the Landry decision, the plaintiff would actually realize an award no greater than the maximum to which he was entitled under either act.

In Bouford v. Bath Iron Works Corporation, supra, the Supreme Judicial Court of Maine held that a plaintiff could receive an award under the Maine Workers’ Compensation Act for permanent impairment in addition to a total award under the LHWCA, which award included benefits for permanent partial disability. The court reasoned that the permanent impairment award under the Maine act was intended to provide compensation for the physical consequences of a work related injury and, therefore, such award was not duplicative of the permanent partial disability award under the federal act which provides compensation for loss of earning capacity. The court deemed the Maine permanent impairment award to be a superior state benefit which was recoverable under the Sun Ship decision, and which was distinct from the permanent partial disability award under the LHWCA. We find, however, for the reasons set forth in our above discussion, that the category by category credit scheme adopted in Bouford is inconsistent with the Sun Ship decision, the Connecticut Workers’ Compensation Act and the LHWCA. Accordingly, we decline to adopt such a credit scheme.

There is error, the decision of the compensation review division affirming the awards of the second district workers’ compensation commission is reversed, and the awards of the workers’ compensation commission are set aside.

In this opinion the other judges concurred.

       Aetna Life and Casualty, the insurer of the named defendant, is also a defendant in these appeals.

       General Statutes § 31-308 (d) provides in pertinent part:
      “(d) In addition to compensation for total or partial incapacity or for a specific loss of a member or use of the function of a member of the body, the commissioner may award such compensation as he deems just, equal to sixty-six and two-thirds per cent of the average weekly earnings of the injured employee, but in no case more than the maximum weekly benefit rate as established in section 31-309, for any permanent significant disfigurement of, or permanent significant scar on, any part of the body up to two hundred and eight weeks, but no compensation shall be awarded when such disfigurement was caused solely by the loss of or the loss of use of a member of the body for which compensation payments are provided by the terms of subsection (b) of this section or for any scar resulting from an inguinal hernia operation or any spinal surgery.”

       The scarring suffered by each plaintiff was within the scope of General Statutes § 31-308 (d), but outside the more limited circumstances under which benefits for scarring are available under the LHWCA. Title 33 U.S.C. § 908 (c) (20) provides that “[pjroper and equitable compensation not to exceed $7,500 shall be awarded for serious disfigurement of the face, head or neck or of other normally exposed areas likely to handicap the employee in securing or maintaining employment.”

       We recognize that the language quoted from Calbeck v. Travelers Ins. Co., 370 U.S. 114, 82 S. Ct. 1196, 8 L. Ed. 2d 368 (1962), is dicta. See note, ‘ ‘Bouford, v. Bath Iron Works: Defining Double Recovery Under State and Federal Compensation Laws for Maritime Workers,” 39 Me. L. Rev. 464, 479 n.57 (1987) and accompanying text. This fact does not, however, minimize the import of that language since it was cited by the Supreme Court in Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 100 S. Ct. 2432, 65 L. Ed. 2d 458, reh. denied, 448 U.S. 916, 101 S. Ct. 37, 65 L. Ed. 2d 1179 (1980), in support of its prohibition against double recovery.

       This conclusion is supported by the analogous situation in Thomas v. Washington Gas Light Co., 448 U.S. 261, 100 S. Ct. 2647, 65 L. Ed. 2d 757 (1980), which held that the full faith and credit clause of article IV of the United States constitution does not preclude successive state workers’ compensation awards. In so holding, the Supreme Court recognized that a supplemental award by the second state “allows full credit for payments pursuant to the earlier award.” (Emphasis added.) Id., 281.

       Prior to the 1972 amendment of the LHWCA, such land based injuries fell outside the aegis of the federal act and relief for those injuries had been the province of state compensation laws. Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 719, 100 S. Ct. 2432, 65 L. Ed. 2d 458 (1980); Nacirema Operating Co. v. Johnson, 396 U.S. 212, 219-24, 90 S. Ct. 347, 24 L. Ed. 2d 371 (1969).

       General Statutes § 31-284 (a) provides: “An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as follows, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between employer and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment as aforesaid are abolished other than rights and claims given by this chapter, provided nothing herein shall prohibit any employee from securing, by agreement with his employer, additional benefits from his employer for such injury or from enforcing such agreement for additional benefits.”

       Such exclusive remedy provisions are a feature of every state’s workers’ compensation scheme. See 2A A. Larson, Workmen’s Compensation Law, §§ 65.00 through 67.30 (1988). The remedy available under the LHWCA is also deemed exclusive for those employees who are entitled to compensation under the act. 33 U.S.C. § 905 (a).

       This result is consistent with the system of crediting applicable to successive state workers’ compensation awards. “[T]he worst that can happen to the [employer] is that they will have to pay no more than the highest compensation allowed by any single state having an applicable statute— which is the same amount that would always be payable if the claimant made the best-informed choice the first time.” 4 A. Larson, Workmen’s Compensation Law, § 85.60 (1988).


author: Daly, J.

text:
    Angela Kiernan et al. v. Roadway Express, Inc., et al.
    (5779)
    Spallone, Daly and Norcott, Js.
    Argued March 9—
    decision released August 23, 1988

      Michael J. McClary, with whom, on the brief, was John J. Keefe, Jr., for the appellant (named defendant).

      Carl J. Schuman, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert B. Teitelman, assistant attorney general, for the appellee (defendant Second Injury and Compensation Assurance Fund).
   Daly, J.

The defendant, Roadway Express, Inc. (Roadway), is appealing from the decision of the compensation review division (CRD) reversing an order by the workers’ compensation commissioner (commissioner) transferring liability for compensation benefits payable to the claimant, Angela Kiernan, from Roadway to the defendant Second Injury and Compensation Assurance Fund (Fund). Roadway claims that the CRD erred (1) in determining that the Fund was not liable for payments, and (2) in considering the Fund’s appeal from the decision of the commissioner due to procedural defects in that appeal. We find no error.

In his finding and award filed October 4, 1983, the commissioner found the following facts. The claimant is the dependent widow of the decedent, who was employed by Roadway as a freight terminal manager at the time of his death. This position entailed long working hours which had been increased due to a personnel shortage and the consequent assumption of additional duties by the decedent. During this time period, the decedent experienced weight loss, fatigue and significant job related stress. Earlier in his employ with Roadway, the decedent had experienced chest pains and was diagnosed as having “angina, secondary to probable coronary artery disease.” On September 28, 1979, the decedent, while in the course of making a telephone call, died at his office desk.

The commissioner found that the decedent’s death arose out of and in the course of his employment. The commissioner further found that the decedent had a preexisting, permanent physical impairment and that the decedent’s death was due to the stress arising out of and in the course of his employment. It was further found that his death was caused by both the preexisting condition and the stress and that his death was a condition which was materially and substantially greater than that which would have resulted from the second injury (stress) alone. Accordingly, the commissioner ordered that the Fund pay the claimant benefits as directed by General Statutes § 31-349.

On appeal, the CRD ruled that Roadway had failed to comply with the notice provision of § 31-349 which requires an employer or its insurance carrier to notify the custodian of the Fund of a claim to transfer liability within ninety days prior to the expiration of 104 weeks following the occurrence of the disability. Consequently, the CRD denied the transfer of liability from Roadway to the Fund and reversed the commissioner’s ruling.

Roadway claims that the CRD erroneously applied the notice provision of § 31-349 relating to nonfatal disabilities to the present case which involves a fatality. The portion relevant to nonfatal disabilities provides that “[a]s a condition precedent to the liability of the second injury fund, the employer or his insurance carrier must, ninety days prior to the expiration of the one-hundred-four week period, notify the custodian of the second injury fund of the pending case . . . .” (Emphasis added.) General Statutes (Rev. to 1979) § 31-349. Roadway argues that, in the absence of similar language providing that notice is a condition precedent to the transfer of liability in the case of a fatality, the use of “shall” in the latter context is directory rather than mandatory. Roadway contends, therefore, that its tardy filing should not preclude the transfer of liability to the Fund. Roadway also claims that the Fund waived any defect in notice by participating in the hearings after that notice and further contends that the Fund was not prejudiced in light of its participation in the hearings. Although the Fund concedes that the CRD applied the incorrect portion of § 31-349, it nevertheless argues that the decision of the CRD was proper since the notice requirement vis-a-vis fatalities is mandatory rather than directory.

The most satisfactory and conclusive test for determining whether a statute is mandatory or directory is whether the prescribed mode of action is of the essence of the thing to be accomplished or, in other words, whether it relates to a matter of substance or of convenience. Tramontano v. Dilieto, 192 Conn. 426, 432, 472 A.2d 768 (1984); Weiss v. Newtown, 4 Conn. App. 200, 202, 493 A.2d 273 (1985). The statutory notice provision pertaining to fatalities is substantively integral to § 31-349; it enables the Fund to be apprised promptly of a pending claim, to obtain a copy of any agreement or award and to have immediate access to relevant medical reports. Plesz v. United Technologies Corporation, 174 Conn. 181, 188, 384 A.2d 363 (1978). “Such information is essential to enable the fund to assess promptly its alleged liability and to establish immediately its financial reserves. A further objective is to give the fund a reasonable period of time within which to investigate the claim and to prepare to meet it.” Id. Furthermore, notice requirements in the workers’ compensation act are to be strictly construed. Misiurka v. Maple Hill Farms, Inc., 15 Conn. App. 381, 384, 544 A.2d 673 (1988). We conclude, therefore, that the notification provision of § 31-349 relating to a fatality is mandatory rather than directory.

This conclusion is consistent with the statute’s directive that an employer “shall” notify the Fund within the prescribed time period. In its ordinary usage, the word “shall” means that the directive in question is mandatory, absent legislative intent to the contrary. Farricielli v. Personnel Appeal Board, 186 Conn. 198, 203, 440 A.2d 286 (1982); see Weiss v. Newtown, supra, 203. “ ‘A statute which provides that a thing shall be done in a certain way carries with it an implied prohibition against doing that thing in any other way.’ ” Farricielli v. Personnel Appeal Board, supra, 204, quoting State ex rel. Barlow v. Kaminsky, 144 Conn. 612, 620, 136 A.2d 792 (1957); see also Jones v. Civil Service Commission, 175 Conn. 504, 509, 400 A.2d 721 (1978). We note also that the court in Plesz, supra, construed virtually identical language regarding notification in the nonfatal disability portion of an earlier version of § 31-349 as mandatory rather than directory.

We are unpersuaded by Roadway’s argument that the failure to amend the notification provision regarding fatalities in a similar fashion to that regarding non-fatalities, namely, to include the “condition precedent” language, evinces a legislative intent that the former should be directory rather than mandatory. The legislative history of § 31-349 does not support such a conclusion, and Roadway’s argument in this regard amounts to little more than speculation.

Nor are we persuaded by Roadway’s arguments that the Fund waived any defect in notification by participating in the hearings and that the Fund was not prejudiced due to that opportunity to participate. The Fund’s participation in the hearings, despite Roadway’s failure timely to comply with the notification procedure, was consistent with the Fund’s obligation to ascertain its potential liability. Roadway has failed to present any authority for the proposition that such participation constitutes a waiver by the Fund of defective notice. Similarly, we find no statutory basis for concluding that a showing of lack of prejudice was intended to have an ameliorative effect on an employer’s failure timely to notify the Fund.

Thus, the CRD correctly concluded that the Fund was not obligated to pay compensation benefits to the claimant although that conclusion was the result of the application of the incorrect portion of § 31-349. Where, however, a correct decision is reached but on mistaken grounds, that decision will be sustained if, as in this case, proper grounds exist to support it. Norwich v. Norwalk Wilbert Vault Co., 11 Conn. App. 332, 334, 527 A.2d 716 (1987).

Roadway also claims that the CRD was without jurisdiction to hear the Fund’s appeal from the decision of the commissioner due to the Fund’s failure properly to file its reasons for appeal and its failure to file a motion to correct the finding of the commissioner. Roadway, however, never raised the former issue in the proceedings before the CRD. Similarly, our review of the record fails to disclose a motion to dismiss by Roadway premised on the Fund’s failure to file a motion to correct. This court is not bound to consider claims of error when, as here, those claims were not distinctly raised at trial. Practice Book § 4185. Under these circumstances, we decline to review these claims.

There is no error.

In this opinion the other judges concurred.

       Roadway has withdrawn its appeal against the claimant and, therefore, she is not involved in this appeal. .

       Roadway has not appealed from the CRD’s dismissal of its appeal from the decision of the commissioner alleging that the decedent’s death did not arise out of and in the course of employment. The CRD dismissed this appeal for failure timely to file the reasons for appeal in accordance with § 31-301-2 of the Regulations of Connecticut State Agencies.

       General Statutes (Rev. to 1979) § 31-349 provided in pertinent part: “The fact that an employee has suffered previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury, nor preclude compensation for death resulting therefrom. If an employee who has previously incurred, by accidental injury, disease or congenital causes, total or partial loss of, or loss of use of, one hand, one arm, one foot or one eye, or who has other permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone, he shall receive compensation for the entire amount of disability, including total disability, and necessary medical care, as elsewhere provided in this chapter, notwithstanding the fact that part of such disability was due to prior accidental injury, disease or congenital causes. The employer by whom the employee is employed at the time of the injury, or his insurance carrier, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. As a condition precedent to the liability of the second injury fund, the employer or his insurance carrier must, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case and shall furnish to said custodian a copy of the agreement or award together with all information purporting to support his claim as to the liability of the second injury fund, and shall make available to the custodian all medical reports as the custodian shall desire. Failure on the part of the employer or the carrier to comply does not relieve the employer or carrier of its obligation to continue furnishing benefits under the provisions of the act. In the event the custodian shall reject the claim of the employer and its insurer, the question shall be submitted to the commissioner having jurisdiction, as promptly as possible, and the employer or carrier shall continue furnishing benefits until the outcome is finally decided, and if the employer or carrier prevails all payments made beyond the one-hundred-four-week period shall be reimbursed to the employer or carrier by the second injury fund. After the employer or its insurer has completed the payment for the one-hundred-four-week period, he shall file with the commissioner having jurisdiction, and with the custodian of the second injury fund, a form indicating that all compensation and medical bills have been paid for the one-hundred-four-week period, and indicating thereon the date the custodian was notified of the pending case. Thereafter all responsibility for compensation and medical treatment shall be with the custodian of the second injury fund. If the subsequent injury of such an employee resulting from an accident arising out of and in the course of his employment shall result in the death of the employee, and it shall be determined that either the injury or death would not have occurred except for such preexisting permanent physical impairment, the employer or his insurance carrier shall, in the first instance, pay the funeral expense described in this chapter, and shall pay death benefits as may be due for the first one hundred four weeks. Ninety days prior to the expiration of the one-hundred-four-week period, the employer or his insurance carrier shall notify the custodian of the second injury fund of the pending case and shall furnish to said custodian a copy of the agreement or award. After the employer or its insurer has completed the payment for the one-hundred-four-week period, he shall file with the commissoner having jurisdiction, and with the custodian of the second injury fund, a form indicating that all compensation has been paid for the one-hundred-four-week period, and indicating thereon the date that the custodian was notified of the pending case. Thereafter all responsibility for compensation shall be with the custodian of the second injury fund. . . .”
      Section 31-349 is in effect divided into two portions, the first of which addresses nonfatal disabilities and the latter of which relates to, as in this case, fatalities. With respect to nonfatal disabilities, No. 86-31 of the 1986 Public Acts made the following change. “As a condition precedent to the liability of the second injury fund, the employer or his insurance carrier shall, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case . . . .” (Emphasis added.)

       It is undisputed that Roadway did not file notice with the Fund until twenty-nine weeks after the expiration of the statutorily prescribed time period.

       Regs., Conn. State Agencies § 31-301-2 provides: “Within ten days after the filing of the appeal petition, the appellant shall file with the compensation review division his reasons of appeal. Where the reasons of appeal present an issue of fact for determination by the division, issue must be joined by a pleading filed in accordance with the rules applicable in ordinary civil actions; but where the issue is to be determined upon the basis of the finding of the commissioner and the evidence before him, no pleadings by the appellee are necessary.”

       Regs., Conn. State Agencies § 31-301-4 provides: “If the appellant desires to have the finding of the commissioner corrected he must, within two weeks after such finding has been filed, unless the time is extended for cause by the commissioner, file with the commissioner his motion for the correction of the finding and with it such portions of the evidence as he deems relevant and material to the corrections asked for, certified by the stenographer who took it, but if the appellant claims that substantially all the evidence is relevant and material to the corrections sought, he may file all of it so certified, indicating in his motion so far as possible the portion applicable to each correction sought. The commissioner shall forthwith, upon the filing of the motion and of the transcript of the evidence, give notice to the adverse party or parties.”