author:
O’Connell, J.
      Dupont, C. J.,

text:
    William Beazley Company v. Business Park Associates, Inc.
    (11968)
    Dupont, C. J., O’Connell and Lavery, Js.

      Argued January 12
    decision released June 3, 1994

      John S. Bennet, for the appellant (defendant).

      Narcy Z. Dubicki, for the appellee (plaintiff).
   O’Connell, J.

This is the defendant’s appeal from the granting of a prejudgment real estate attachment (PJR). The defendant claims that the trial court (1) improperly based its granting of the PJR on a defective real estate listing, and (2) improperly relied on the decision of another judge on a motion to strike. Additionally, the defendant claims that there was no violation of the Connecticut Unfair Trade Practices Act. General Statutes § 42-110a et seq. We reverse the judgment of the trial court.

The plaintiff real estate broker claimed to have a cause of action against the defendant for a commission based on a certain listing agreement. On August 12, 1992, the plaintiff filed an application for a PJR accompanied by the requisite proposed unsigned writ, summons and complaint, a supporting affidavit, and an order and summons. See General Statutes § 52-278c. The clerk of the Superior Court for the judicial district of New London assigned the PJR application for a hearing to be held on September 14, 1992. General Statutes § 52-278c (c).

On September 14,1992, however, no hearing on the PJR application took place because the defendant had filed a motion to strike the complaint on the ground that it failed to state a legally sufficient cause of action. By agreement of the parties, the trial court, Teller, J., heard argument on the motion to strike and denied it in a written memorandum of decision filed November 6, 1992.

On December 7, 1992, a hearing on the PJR application finally took place before the trial court, Hurley, J. Judge Hurley took the position that the denial of the motion to strike constituted the law of the case and that he had no authority to make an independent determination of probable cause. Judge Hurley then granted the PJR application. On appeal, the defendant argues, inter alia, that Judge Teller’s ruling on the motion to strike did not bar Judge Hurley from making an independent probable cause determination. We agree.

“The right to attach property on mesne process is created and regulated by statute.” Harris v. Barone, 147 Conn. 233, 234, 158 A.2d 855 (1960). Since 1973, the authority for pretrial property attachment has been spelled out in General Statutes §§ 52-278a through 52-278n. Because the plaintiff’s right to a PJR is founded and regulated by statute, the law mandates strict compliance with the authorizing statute. Ledge-brook Condominium Assn., Inc. v. Lusk Corp., 172 Conn. 577, 582-83, 376 A.2d 60 (1977). In addition to this fundamental tenet of statutory law, General Statutes § 52-278b expressly enunciates that “no prejudgment remedy shall be available to a person in any action at law or equity . . . unless he has complied with the provisions of sections 52-278a to 52-278g . . . .” In establishing the procedure for a hearing on a P JR application, § 52-278d (a) unequivocally states that “[t]he hearing shall be limited to a determination of whether or not there is probable cause to sustain the validity of the plaintiffs claim. ” (Emphasis added.) No provision is made in this statute for a motion to strike the proposed unsigned complaint. This is logical because the proposed unsigned complaint is not yet “in court” until the court, pursuant to § 52-278d (a), grants the application and until, pursuant to subsection (b), proper service of the writ, summons and complaint is made.

In its brief, the defendant explains that “[i]t was the agreement of the parties and order of the court that a hearing on the Motion to Strike would be had, and a decision rendered thereon, rather than take the court’s time with a hearing on the Application for Prejudgment Remedy. Granting of that motion would have made other proceedings unnecessary.” Although the intent of the parties to conserve judicial resources is laudable, we cannot give effect to this intent because the court had jurisdiction to make a probable cause determination only, nothing more. The parties cannot confer jurisdiction on the court by agreement. Castro v. Viera, 207 Conn. 420, 429-30, 541 A.2d 1216 (1988).

A logical question arises. Is there any reason why Judge Hurley could not refer to Judge Teller’s memorandum and rely on it to make a probable cause determination? There are several obstacles to such procedure. First: For purposes of a motion to strike, all well pleaded allegations are taken as true and no evidence is received. Kilbride v. Dushkin Publishing Group, Inc., 186 Conn. 718, 719, 443 A.2d 922 (1982). In a P JR hearing, on the other hand, nothing is taken as true and the court is charged with making its determination from the often bitterly contested testimony and other evidence submitted by both parties. William M. Raveis & Associates, Inc. v. Kimball, 186 Conn. 329, 333, 441 A.2d 200 (1982).

Second: The P JR probable cause review is extremely limited. “It is firmly established that the trial court’s hearing in probable cause is not intended to be a full scale trial on the merits of the plaintiff’s claim. The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. . . . The court’s role in such a hearing is to determine probable success by weighing probabilities. . . .” (Internal quotation marks omitted.) Fischel v. TKPK, Ltd., 34 Conn. App. 22, 24, 640 A.2d 125 (1994).

This limited evidentiary standard contrasts sharply with the detailed and substantive arguments and conclusions necessary in a motion to strike. S.M.S. Textile Mills, Inc. v. Brown, Jacobson, Tillinghast, Lahan & King, P.C., 32 Conn. App. 786, 796, 631 A.2d 340, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993) (in challenging legal sufficiency of pleading, trial court determines whether all well pleaded facts, construed in manner most favorable to plaintiff, supports legally recognizable claim). This more exhaustive inquiry is necessary because the end result of granting a motion to strike may be a judgment for the defendant. Practice Book § 157.

Third: It confuses the requirements for issuing a PJR with the underlying merits of the case. “The adjudication made by the court on the application for a prejudgment remedy is not part of the proceedings ultimately to decide the validity and merits of the plaintiffs cause of action. It is independent of and collateral thereto and primarily designed to forestall any dissipation of assets by the defendant .... [PJrejudgment remedy pro-' ceedings . . . are not involved with the adjudication of the merits of the action brought by the plaintiff or with the progress or result of that adjudication.” E. J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 628-29, 356 A.2d 893 (1975).

The decision on the motion to strike the underlying complaint was irrelevant to the PJR proceeding and, as far as that proceeding is concerned, was a nullity. The judge at the PJR hearing was charged with making a probable cause determination. He has not done so. The PJR order was issued without a probable cause determination and must be vacated and a proper hearing must be held.

In view of the foregoing disposition, we do not reach the defendant’s other claims.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion Lavery, J., concurred.

Dupont, C. J.,

concurring. The trial court never found probable cause for the issuance of a prejudgment remedy, stating only that the denial of the motion to strike was dispositive of the case, and that, therefore, the remedy should be granted in the amount agreed upon by the parties. I agree, therefore, that the case should be remanded for a probable cause hearing so that the relevant finding may be made. I do not agree, however, that a probable cause hearing can be conducted without a preliminary conclusion that the plaintiff has a cause of action. Any conclusion that the evidence at a prejudgment hearing supports a probability of success on the merits, which would allow a prejudgment remedy to be ordered, must be based on a finding, express or implied, that there is a cause of action.

The determination of probable cause includes an assessment of the legal issues, and must include a weighing of the probability of success based on whether the facts tend to prove the elements of the cause of action alleged. Solomon v. Aberman, 196 Conn. 359, 364-65, 493 A.2d 193 (1985). To the extent that the majority implies that a probable cause hearing need not first consider whether a cause of action exists, I respectfully disagree.

       As a result of the granting of a motion for summary judgment, this claim is no longer before this court. The record is not clear as to the procedural mechanism by which this was accomplished.

       General Statutes § 52-278c (c) provides in pertinent part: “The clerk upon receipt of all such documents in duplicate, if he finds them to be in proper form, shall fix a date for the hearing on the application and sign the order of hearing and notice . . . .”

       General Statutes § 52-278h, which provides for an application for a PJR in an action already pending, is not relevant to this case.

       General Statutes § 52-278d (a) provides in pertinent part: “If the court, upon consideration of the facts before it, finds that the plaintiff has shown probable cause to sustain the validity of his claim, then the prejudgment remedy applied for shall be granted . . . .”

       General Statutes § 52-278d (b) provides in pertinent part: “The clerk, upon the granting of the application for prejudgment remedy, shall deliver to the applicant’s attorney the proposed writ, summons and complaint for service of process. . . .”

       Although action induced by an appellant cannot ordinarily be grounds for relief on appeal; State v. Scognamiglio, 202 Conn. 18, 25, 519 A.2d 607 (1987); we cannot apply that rule when the result is action de hors the court’s jurisdiction.

       We express no opinion on the legal correctness of Judge Teller’s decision.

       This assumes that the entire complaint has been stricken and the plaintiff has elected not to file a substitute complaint.


source: Caselaw Access Project

author: Landau, J.

license: Public Domain

text:
    State of Connecticut v. Delmar Earl Jones
    (12172)
    Dupont, C. J., Foti and Landau, Js.

      Argued April 25
    decision released June 3, 1994

      Margaret P. Levy, for the appellant (defendant).

      David J. Sheldon, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Dennis J. O’Connor, assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant appeals from the trial court’s judgment of conviction, rendered after a trial to the court, of assault in the first degree in violation of General Statutes § 53a-59 (a) (3), and risk of injury to a child in violation of General Statutes § 53-21. The defendant claims that the trial court improperly: (1) held that the evidence was sufficient to prove beyond a reasonable doubt that the defendant recklessly engaged in conduct that created a risk of death to another person, (2) admitted the defendant’s statement made after several requests for the assistance of counsel, (3) admitted the defendant’s statement, which was not made knowingly and intelligently given his mental deficiency, in violation of the defendant’s constitutional rights.

The trial court reasonably could have found the following facts. On June 10,1990, the defendant was living with Eloise Frett and their six month old son, S, and Frett’s two year old child. Frett spent the day at her sister’s apartment doing laundry and caring for her two children. In the evening, Frett returned to her apartment, fed her children, and put S to bed. The defendant had left the apartment during the afternoon, and returned at approximately 10 or 11 p.m. S, who had just awakened, was in his walker, playing with the two year old and laughing. Frett changed the baby’s diaper, returned him to his walker, and then left the apartment to use a public telephone to call her mother. Only the defendant and the children were in the apartment. Frett was absent for more than one hour. Upon her return, the defendant and the two year old were watching television. When Frett asked the defendant where S was, he told her that he was sleeping on their bed. Frett found S in a crawling position on the bed with his eyes closed. She was unable to awaken him. Frett asked the defendant if anything unusual had happened to S and was told no. Frett summoned her sister, Joan, who came to Frett’s apartment. Joan placed her finger in S’s mouth. He bit down on her finger and would not release it. The women called an ambulance, and S was taken to Saint Francis Hospital.

Upon his admission to the hospital, S was unresponsive and could not be awakened; he was comatose. The medical staff at Saint Francis found that S suffered seizures approximately every forty minutes, his eye cavities were filled with blood from brain hemorrhaging, and the retina of one eye was detached. A staff physician who examined S believed that his condition would deteriorate and he would be incapable of sustaining life without respirator support. He arranged for S to be transferred to Hartford Hospital for that purpose.

An examination of S at Hartford Hospital revealed that his injuries had been sustained within the previous twenty-four hours and resembled injuries commonly caused by severe shaking and a sudden impact with a hard surface. S’s condition was diagnosed as severe cerebral injury known as “shaken baby syndrome.” Further examination of S indicated that he had received other serious injuries recently. As a result of his injuries, S is permanently blind, will have severe motor impairment, will experience seizures for many years, perhaps for the rest of his life.

Additional facts pertaining to individual issues are given as necessary to address the defendant’s claims.

The defendant’s first claim is that there was no evidence from which the trial court reasonably could have inferred that the defendant’s conduct created a risk of death to S. The defendant contends that expert testimony was lacking as to the creation of a risk of death. The defendant also challenges the trial court’s finding that his conduct was reckless beyond a reasonable doubt.

“ ‘When reviewing a sufficiency of the evidence claim, we first examine the evidence in the light most favorable to upholding the jury’s verdict. State v. Avis, 209 Conn. 290, 309, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989); State v. Rice, 25 Conn. App. 646, 650, 595 A.2d 947 (1991). We then determine on the basis of the facts established and the inferences that reasonably could be drawn from those facts whether the jury reasonably could have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Hopes, 26 Conn. App. 367, 376, 602 A.2d 23, cert. denied, 221 Conn. 915, 603 A.2d 405 (1992). We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. State v. Robinson, 213 Conn. 243, 254, 567 A.2d 1173 (1989).’ State v. Lago, 28 Conn. App. 9, 30, 611 A.2d 866, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992). Our inquiry into whether the evidence in the record would support a finding of guilt beyond a reasonable doubt does not require us to ask if we believe that the evidence established guilt beyond a reasonable doubt, but rather if ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ (Emphasis in original.) State v. Boykin, 27 Conn. App. 558, 563-64, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992). Once a defendant has been found guilty of the crime charged, we conduct our judicial review of all of the evidence in the light most favorable to the prosecution. Id., 564.” State v. Hamilton, 30 Conn. App. 68, 71-72, 618 A.2d 1372 (1993), aff'd, 228 Conn. 234, 636 A.2d 760 (1994).

In State v. Rumore, 28 Conn. App. 402, 413, 613 A.2d 1328, cert. denied, 224 Conn. 906, 615 A.2d 1049 (1992), this court held that “[t]he risk of death element of the [General Statutes § 53a-59 (a) (3)] focuses on the conduct of the defendant, not on the resulting injury to the victim.” “The statute does not require that the victim was in fact at a risk of death.” Id., 414. The issue is whether violent shaking and a sudden impact of an infant with a hard surface is reckless conduct that creates a risk of death. Id. General Statutes § 53a-3 (13) provides that “[a] person acts ‘recklessly’ with respect to a result . . . when he is aware of and consciously disregards a substantial and unjustifiable risk that such a result will occur .... The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation . . . .” S suffered injuries from violent shaking and a sudden impact with a hard surface. Such treatment of any child is a gross deviation from a reasonable standard of conduct. The defendant had prepared breakfast for the two children that morning. He was familiar with the proper care and treatment of young children. The record adequately supports the trial court’s finding that violent shaking and subjecting the infant to a sudden impact is reckless conduct beyond a reasonable doubt.

The extent of the infant’s injuries also indicates a conscious disregard of a substantial risk of death. For about one hour, the time between Frett’s departure from the apartment when S was seemingly uninjured and her return and finding him injured, the defendant did not call an ambulance or seek help for S. S arrived at Saint Francis Hospital in a coma, and he was suffering from recurring seizures every thirty to forty minutes. The examining physician found it medically necessary to transport the infant to Hartford Hospital because his condition could deteriorate to a point at which the infant could not sustain life without respirator assistance. We conclude that the trial court reasonably could find beyond a reasonable doubt that the defendant’s conduct was reckless and that such conduct created a risk of death to S.

The defendant next claims that the trial court improperly admitted his statement made after his requests for the assistance of counsel in violation of his constitutional rights under the fifth and fourteenth amendments to the United States constitution.

Additional facts are necessary for the resolution of this issue. On July 26,1990, Detective Ernest Scott of the youth services division of the Hartford police department went to the defendant’s apartment, and asked him and Frett if they would be willing to go to the police station to give voluntary statements concerning the events of the evening of S’s injuries. They both agreed. Scott then transported the couple to the police station. Scott interviewed Frett first, then the defendant. Before the interview began, Scott advised the defendant of his Miranda rights, and also read to him his rights from the waiver of rights form. Scott asked the defendant if he understood each one of the rights read to him; the defendant said that he did. The defendant initialed the form five times next to each Miranda right listed on the waiver of rights form, and signed the form at the bottom. At no time did the defendant request an attorney. Scott took the defendant’s statement, read the statement back to him, and the defendant signed it as his own.

The defendant now argues that the trial court violated his constitutional rights in admitting the statement. The trial court denied the defendant’s motion to suppress the statement because it found that the defendant’s testimony that his request for an attorney was denied the day he gave his statement to the police was less credible than Scott’s testimony.

In a trial to the court, the trial court sits as the trier of fact; Knock v. Knock, 224 Conn. 776, 793, 621 A.2d 267 (1993); and the sole judge of the credibility of witnesses. In this capacity, “the trial court ... is uniquely competent to determine the credibility and weight to be accorded to evidence, the scope of our review of the trial court’s decision to accept or reject the defendant’s . . . testimony is limited. After considering the totality of the record in the light most favorable to sustaining the trial court’s factual conclusions, we will disturb the trial court’s findings only if we determine that they are clearly erroneous.” Bieluch v. Bieluch, 199 Conn. 550, 556, 509 A.2d 8 (1986). The trial court was in the best position to observe the witnesses, to determine their motivations for testifying, and to pass on the credibility of each witness. Scott’s version of the events was supported by the evidence; we cannot con-elude that the trial court’s finding was clearly erroneous. Because the trial court found that the defendant did not request an attorney, there was no violation of the defendant’s constitutional rights. Therefore, the trial court’s admission of the statement was proper.

Finally, the defendant challenges the admission of the statement on the ground that his mental deficiency rendered the statement inadmissible as not knowingly and intelligently made. The state argues that the defendant’s claim is not reviewable because the defendant failed to preserve the claim in the trial court, and did not appropriately provide an Evans-Golding analysis establishing his right to such review.

The defendant did not raise this claim before the trial court, and first addressed its reviewability in his reply brief. This claim has not been properly preserved for our review.

It is well established that generally this court will not review claims that were not distinctly raised in the trial court. State v. Tillman, 220 Conn. 487, 504, 600 A.2d 738 (1991), cert. denied, U.S. , 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992). A defendant may prevail on a claim of constitutional error not preserved at trial, however, if all the conditions of Evans-Golding are satisfied. State v. Golding, 213 Conn. 233, 239-240, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). Here, the unpreserved claim was not claimed under an Evans-Golding analysis in the defendant’s brief, but argued in his reply brief as a result of the state’s anticipatory argument. The reply brief is not the proper vehicle in which to provide this court with the basis for our review under an Evans-Golding analysis. We, accordingly, decline to review the defendant’s claim. Practice Book §§ 4183 and 4185; see State v. Nelson, 17 Conn. App. 556, 576, 555 A.2d 426 (1989) (refusing to review party’s claim because party failed to raise issue at trial and brief failed to argue claim was reviewable under Evans); Board of Education v. Local 1282, 31 Conn. App. 629, 633, 626 A.2d 1314, cert. granted on other grounds, 227 Conn. 909, 632 A.2d 688 (1993) (refusing to review party’s argument that first appears in its reply brief), citing Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 716, 535 A.2d 799 (1988) (only in most exceptional circumstances will appellate court consider claim that was not raised in trial court); Fiddelman v. Redmon, 31 Conn. App. 201, 213, 623 A.2d 1064, cert. denied, 226 Conn. 915, 628 A.2d 986 (1993) (criticizing practice whereby party receives unfavorable trial court decision and then attempts to impeach it for reasons known to party before or during proceeding); Protter v. Brown Thompson & Co., 25 Conn. App. 360, 363-64 n.2, 593 A.2d 524 (1991) (refusing to review claim raised for first time in reply brief).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides in pertinent part: “A person is guilty of assault in the first degree when ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . . .”
      General Statutes § 53-21 provides: “Any person who wilfully or unlawfully 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.”

       In accordance with General Statutes § 46b-142 (b) and Practice Book § 4166B.2, the name of the minor child in this appeal is not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

       See State v. McClary, 207 Conn. 233, 246, 541 A.2d 96 (1988) (finding that shaken baby syndrome is diagnosis generally accepted in medical field).

       The defendant urges this court to reexamine our holding in State v. Rumore, supra, 28 Conn. App. 413. We decline to do so.

       In Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the United States Supreme Court ruled that an individual who has been taken into custody or otherwise deprived of his freedom in any significant way “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.”
      “If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.” Id., 474.

       The trial court ruled from the bench on whether the defendant’s statement was admissible: “I find that as a matter of credibility [Scott’s] statement was more credible for purposes of this motion, and that the state has proved — established it by at least a preponderance of the evidence. . . . I find for the state on this motion, and I find that the state has established by a preponderance of the evidence necessary elements, including the fact that [the defendant] did not request an attorney.”


author: Dupont, C. J.

text:
    Edward Herzig v. Donald Horrigan
    (12450)
    Dupont, C. J., Lavery and Schaller, Js.
    Argued May 2
    decision released June 3, 1994

      Jason E. Pearl, with whom was J. Bruce Sussman, for the appellant (plaintiff).

      William J. Prensky, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (third party garnishee).
   Dupont, C. J.

The plaintiff appeals from the judgment of the trial court dissolving a garnishment and property execution served on agents of the state of Connecticut. The plaintiff challenges the trial court’s conclusion that the doctrine of sovereign immunity bars the garnishment of a judgment debtor’s Lotto winnings. We affirm the decision of the trial court.

The plaintiff obtained a summary judgment in the amount of $13,100 against the named defendant Donald Horrigan for his failure to pay rent to the plaintiff. According to the plaintiff, the only asset of the defendant amenable to execution is the $1,093,531.75 Lotto prize won by the defendant in the Connecticut State Lotto drawing on July 11, 1986, payable in twenty annual installments of $54,676.58.

On March 5,1993, the plaintiff attempted to garnish these payments by serving a property execution on the state lottery director, the executive director of the division of special revenue, the state deputy treasurer, one of the associate attorneys general, and an officer of the office of the state comptroller. The five agents served each refused to honor the property execution, and the state subsequently moved to dissolve the garnishment on the ground of sovereign immunity. The trial court granted the motion to dissolve, citing Stillman v. Isham, 11 Conn. 124 (1835), and Doe v. Heintz, 204 Conn. 17, 526 A.2d 1318 (1987).

The trial court found that, presently and through the year 2006, these payments are and will be made annually when the division of special revenue informs the comptroller via “a routine process known as an expenditure batch” that a payment is due to the defendant. The comptroller draws a check for $54,676.58 payable to the defendant from funds in the custody of the treasurer. This check is sent to the division of special revenue, which in turn forwards it to the defendant.

The issue raised by the plaintiff is a straightforward one. We must determine whether the doctrine of sovereign immunity protects the state from honoring a property execution on a judgment debtor’s state lottery winnings. It is an ancient principle that the king, being the “fountainhead of justice,” cannot be sued in his own courts. Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977). This principle has developed into the common law doctrine of sovereign immunity. The source of sovereign power in the state of Connecticut is the constitution, and it is recognized that a sovereign is immune from suit “on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.” Id., quoting Kawananakoa v. Polyblank, 205 U.S. 349, 353, 27 S. Ct. 526, 51 L. Ed. 834 (1907). This doctrine encompasses suits against the agents of the state government as well as those against the sovereign state itself, for the state can act only through its officers and agents. Antinerella v. Rioux, 229 Conn. 479, 487, 642 A.2d 699 (1994); White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990); Doe v. Heintz, supra, 204 Conn. 31.

The modern purpose of the sovereign immunity doctrine rests not on arguably ancient and outdated concepts, but, rather, on the purpose of preventing serious interference with governmental functions and the imposition of enormous fiscal burdens on the state by subjecting its government to private litigation. Fetterman v. University of Connecticut, 192 Conn. 539, 552, 473 A.2d 1176 (1984); Horton v. Meskill, supra, 172 Conn. 624. The bar of actions against the state is not absolute, however, and has been modified by both statutes and judicial decisions. Antinerella v. Rioux, supra, 229 Conn. 487. For example, unconstitutional or unauthorized acts of the state are not protected by the doctrine of sovereign immunity. Fetterman v. University of Connecticut, supra, 552; Horton v. Meskill, supra, 624. The state may also consent to be sued in certain cases by appropriate legislation waiving its sovereign immunity. White v. Burns, supra, 213 Conn. 312; Connecticut State Employees Assn. v. Dept. of Administrative Services, 20 Conn. App. 676, 678, 569 A.2d 1152, cert. denied, 214 Conn. 809, 573 A.2d 320 (1990). In the case of statutory waiver of sovereign immunity, “statutes in derogation of the state’s immunity from suit should be strictly construed so that the state’s sovereignty may not be undermined.” Sagamore Group, Inc. v. Commissioner of Transportation, 29 Conn. App. 292, 300, 614 A.2d 1255 (1992), quoting DeFonce Construction Corp. v. State, 198 Conn. 185, 188, 501 A.2d 745 (1985); see also Lacasse v. Burns, 214 Conn. 464, 468, 572 A.2d 357 (1990). A clear intent to waive sovereign immunity must be disclosed by “the use of express terms or by force of a necessary implication.” (Internal quotation marks omitted.) Struckman v. Burns, 205 Conn. 542, 558, 534 A.2d 888 (1987). Absent such a clear intent, the doctrine of sovereign immunity implicates the subject matter jurisdiction of the trial court and is a basis for granting a motion to dismiss a suit against the state. Amore v. Frankel, 228 Conn. 358, 364, 636 A.2d 786 (1994); see also Berger, Lehman Associates, Inc. v. State, 178 Conn. 352, 358, 422 A.2d 268 (1979).

Neither the legislature nor the appellate courts of this state have specifically addressed the question of whether the state may be served with a property execution on lottery winnings. Indeed, we must look back over 150 years, to the case of Stillman v. Isham, supra, 11 Conn. 124, to find the last appellate level decision in this state on the subject of garnishment of funds held for another by a public officer.

In Stillman, the defendant, a state’s attorney, in his official capacity had sued for and received the value of an alleged arsonist’s forfeited bail bond. The General Assembly had meanwhile passed a resolution that this money should be paid over to the arsonist’s victim, whose store had been damaged in the fire. As soon as the defendant received the money due on the bond, but before he had paid it to the victim, however, a creditor of the victim attempted to attach that sum by serving process on the defendant. The court decided that, although the statute permitting foreign attachment was designed to prevent the fraudulent concealment of property, and should thus be construed liberally, a public officer who is bound to transact the public business should not be susceptible to “the expense, the inconvenience and hazard incident” to the process of foreign attachment. Id., 127. The court further stated: “It is apparent, that if this process is allowed, it must destroy the simplicity of the mode of accounting. Instead of the receipt of the person who is entitled to the money, the officer must produce . . . and verify the process under which it was paid. He must then run the risk of any mistaken opinion as to its legality, or await the slow proceedings of judicial decisions. He may have to meet and decide upon conflicting claims of creditors as to their priority; and may be called to appear in remote parts of the state, to the injury of the public business, with some expense and great inconvenience to himself. These objections exist in the case of all public officers, whether they are loan officers, county treasurers, administrators or state’s attorneys.” Id. The court thus held that sovereign immunity prevented the plaintiff from using the process of foreign attachment to obtain funds due a judgment debtor held by a public official in his official capacity as state’s attorney.

The plaintiff argues that a property execution on a state agency is not the “institution of suit,” and thus is not barred by the doctrine of sovereign immunity. Stillman, however, has defined the doctrine of sovereign immunity in Connecticut as encompassing attachments served on an officer of the state, and does not limit the application of the doctrine of sovereign immunity to suits against the state involving the state’s direct pecuniary interest in the outcome. Although subsequent decisions have further defined and modified the doctrine of sovereign immunity, neither the substance of nor the basic reasoning behind the Stillman holding has been abrogated by the appellate courts of this state. The practical implications of abolishing sovereign immunity as a defense to garnishment still exist.

The number of potential judgment debtors whose funds may be held by the state is immense. There are thousands of state vendors who may be putative judgment debtors and many lesser winners of the state lottery, as well as potential weekly winners of it, and potential daily winners of the various gaming prizes established by the state, each of whom may be a judgment debtor. Until such time as the legislature grants judgment creditors the right to reach such sums held by the state for such winners and vendors, the courts should continue to apply the doctrine of sovereign immunity. General Statutes §§ 52-350e and 52-350Í do not explicitly permit a property execution pursuant to a money judgment to be served on the state or enforced against property of the judgment debtor in possession of the state. The construction of a statute in derogation of the doctrine of sovereign immunity must be strict and when, as here, the statute is silent as to the abrogation of the doctrine, we hold that the doctrine prevents the plaintiff from garnishing the lottery winnings of the defendant while they are in the possession of the state. See White v. Burns, supra, 213 Conn. 312.

The judgment is affirmed.

In this opinion the other judges concurred.

       The named defendant, Donald Horrigan, is hereinafter referred to as the defendant. The state of Connecticut will be referred to as the state.

       In 1981, § 12-561-13 (b) of the Regulations of Connecticut State Agencies provided in part that “no right of any person to a prize drawn shall be assignable . . . except that any person pursuant to an appropriate judicial order may be paid the prize to which the winner is entitled.” That regulation has been repealed and replaced with § 12-568-5 (d), which provides only that “[a] prize to which a purchaser may become entitled shall not be assignable.” Thus, the garnishment of lottery winnings arguably may have been contemplated prior to the revision, but the deletion of the language in the regulation makes it apparent that such is no longer true.
      The legislature has, when it has chosen to do so, abrogated the doctrine of sovereign immunity, as for example, by providing, in General Statutes § 52-361a (g), for service of wage executions upon the state.

       The plaintiff also claims that the agents of the state acted unconstitutionally by refusing to enforce the plaintiffs property execution and that the state denied the plaintiff due process and equal protection under the United States constitution by refusing to enforce the property execution. The record is insufficient to review these claims and the trial court did not consider them. See State v. Golding, 213 Conn. 233, 240, 567 A.2d 823 (1989). We decline to discuss them further.


author: Heiman, J.

text:
    State of Connecticut v. Samuel Finley
    (13324)
    O’Connell, Lavery and Heiman, Js.
    Argued April 28
    decision released June 28, 1994

      Susan M. Hankins, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      James A. Kitten, assistant state’s attorney, with whom, on the brief, was Mary M. Galvin, state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, rendered after a trial to the court, of arson in the first degree in violation of General Statutes § 53a-lll (a) (l). On appeal, the defendant claims that the trial court improperly (1) rendered a judgment of conviction because the state failed to provide sufficient evidence to prove a violation of § 53a-lll (a) (1), (2) excluded evidence, and (3) rendered its finding prior to final argument by defense counsel. We affirm the judgment of the trial court.

The following facts are necessary for a proper resolution of this appeal. In the summer of 1992, an addition to the Laurel Ledge School was being constructed in Beacon Falls. On July 22,1992, the defendant began working at the construction site. On July 23,1992, after complaints from the foreman about the defendant’s work production, Claude Boutote, the superintendent of the construction company, laid off the defendant. Boutote told the defendant that the lay off was due to lack of work. The following morning, the defendant returned to the construction site and walked into Boutote’s trailer office. The defendant was carrying a clorox bleach container. The defendant said to Boutote, “I’m going to work today.” In response, Boutote said: “No, you’re not. You were laid off yesterday and you just go out and go home.” The defendant then punctured the clorox bleach container. It contained kerosene that the defendant began spreading around the trailer, splashing some on Boutote’s pants while stating “if I can’t work, nobody else will.” After spreading the liquid, the defendant attempted to light a match as Boutote exited the trailer. The defendant then followed Boutote out of the trailer and ran away. Immediately following the defendant’s exit from the trailer, Boutote noticed that the trailer was on fire. The fire was extinguished by some construction workers. The fire caused damage to the trailer and to papers that were in the trailer. The trial court found the defendant guilty. This appeal followed.

I

The defendant first claims that the trial court improperly rendered a judgment of conviction because the state failed to provide sufficient evidence to prove a violation of General Statutes § 53a-lll (a) (1). Specifically, the defendant asserts that the state failed to present evidence to satisfy the requirement that the building was occupied or inhabited or that the defendant had reason to believe that the building may have been occupied or inhabited. We are unpersuaded.

In determining the sufficiency of the evidence in arson cases, we look to the time that the defendant started the fire to ascertain whether the elements of § 53a-lll (a) (1) were met. See State v. Moye, 199 Conn. 389, 399, 507 A.2d 1001 (1986); State v. Parmalee, 197 Conn. 158, 162, 496 A.2d 186 (1985). “When we are called on to review a sufficiency of the evidence claim, we impose a two part analysis. We first construe the evidence in the light most favorable to sustaining the verdict. State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993); State v. Rivera, 32 Conn. App. 193, 200-201, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993); State v. Hooks, 30 Conn. App. 232, 238, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993). We next determine whether, from that evidence and all the reasonable inferences that flow from the evidence, a trier of fact could reasonably find that the defendant was guilty beyond a reasonable doubt. State v. Salz, supra [31]; State v. Rivera, supra [200-201].” State v. Reddick, 33 Conn. App. 311, 332, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994). Here, the trial court had before it evidence that Boutote saw the defendant strike the match as Boutote was departing the trailer, that the defendant exited the trailer immediately after Boutote, and that the trailer was on fire immediately after the defendant ran from it. Thus, even though there was no witness to the match igniting while Boutote was in the trailer, the trial court could reasonably infer from this evidence that the match ignited prior to Boutote’s departure. Therefore, there was sufficient evidence for the trial court to find the defendant guilty of arson in the first degree in violation of General Statutes § 53a-lll (a) (1).

II

The defendant next claims that the trial court improperly excluded evidence thereby violating his constitutional rights to present a defense, to testify and to assistance of counsel. Specifically, the defendant asserts that the trial court abused its discretion by sustaining the state’s objection to defense counsel’s questions about the defendant’s state of mind when he walked into the trailer on the morning of July 24,1992. The defendant concedes that he did not properly preserve this claim because he failed to articulate properly the constitutional claims. Practice Book § 4185. The defendant, however, requests review of this claim under the doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We are unpersuaded.

“Under Golding, a defendant can prevail on an unpreserved claim of constitutional error ‘only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.’ Id., 239-40. The first two conditions are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself.” State v. Crosby, 34 Conn. App. 261, 264, 641 A.2d 406 (1994). Here, the defendant cannot satisfy the third condition enunciated under Golding that he was clearly deprived of a fair trial.

“There is no rule in this jurisdiction which prevents a witness from testifying to relevant facts within his personal knowledge merely because his testimony may be self-serving. Such an extraordinary rule presumably would disqualify as witnesses most parties in civil suits as well as the defendant in a criminal case. General Statutes § 52-145 (a) expressly provides that a ‘person shall not be disqualified as a witness in any action because of, (1) his interest in the outcome of the action as a party or otherwise . . . .’We have repeatedly upheld against constitutional challenge an instruction that the jury in weighing the credibility of an accused’s testimony may consider his interest in the outcome of the case. State v. Wright, 198 Conn. 273, 280, 502 A.2d 911 (1985); State v. Frazier, 194 Conn. 233, 239, 478 A.2d 1013 (1984); State v. Maldonado, 193 Conn. 350, 366-67, 478 A.2d 581 (1984). This instruction is presupposed by our recognition and acceptance of the fact that the testimony of an accused may be self-serving. It is the task of the cross-examiner to discredit a witness by exposing his motive or interest in testifying. See, e.g., State v. Ortiz, 198 Conn. 220, 502 A.2d 400 (1985); State v. Milum, 197 Conn. 602, 608-609, 500 A.2d 555 (1985). The ultimate issue, credibility, is for the [fact finder], not the court, to decide.

“The governing principle with respect to this issue is that relevant evidence is admissible unless excluded for some reason of policy. ‘Evidence is admitted, not because it is shown to be competent, but because it is not shown to be incompetent.’ State v. Sharpe, [195 Conn. 651, 659, 491 A.2d 345 (1985)]; State v. Schaffer, 168 Conn. 309, 317, 362 A.2d 893 (1975).” State v. Silveira, 198 Conn. 454, 474-75, 503 A.2d 599 (1986). Here, the defendant’s state of mind was relevant to his guilt under § 53a-lll (a) (1). State v. Ramsundar, 204 Conn. 4, 14, 526 A.2d 1311 (1987). “We have consistently held that mental condition is a fact, and, where relevant to an issue in the case, the witness concerned may testify directly to it. . . . The defendant’s testimony as to his prior mental condition was not hearsay because it concerned a fact within his own personal knowledge. His testimony with regard to this fact was no more and no less self-serving than his testimony with regard to any other fact. The trial court erred by excluding it on the ground that it was self-serving.” State v. Silveira, supra, 475-76.

The determination that the trial court acted improperly does not necessarily require reversal of the judgment. Id., 476. The defendant claims that the erroneous rulings deprived him of his right to testify under article first, § 8, of the Connecticut constitution as well as his federal due process rights to present a defense and assistance of counsel.

“With respect to the state constitutional right to testify, we recently stated that State v. King, [187 Conn. 292, 303-304, 445 A.2d 901 (1982)], where that right was mentioned, ‘did not effect any fundamental change in the law.’ State v. Wright, [198 Conn. 273, 280, 502 A.2d 911 (1986)]. We therefore consider the harmfulness of the erroneous rulings under the due process clause. Our inquiry, under the due process clause, is whether the erroneous exclusion of evidence ‘was so prejudicial to the rights of the defendant as to deprive him of a fair trial. State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980). Stated another way, the question is “whether the claimed erroneous action of the court would have been likely to affect the result.” State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976).’ State v. Talton, 197 Conn. 280, 289, 497 A.2d 35 (1985).” State v. Silveira, supra, 198 Conn. 476-77. Since the excluded evidence reflected the defendant’s state of mind at the time that he walked into the trailer, we must look to determine whether the defendant received a fair trial in light of the evidence admitted at trial that related to that issue. See id.

At trial, the defendant testified that, at the time that he entered the trailer, his state of mind “was to go back to work.” Further, the defendant testified that his intent was to ruin the blueprints in the office. Thus, given the totality of the evidence, the defendant was able to furnish the fact finder with sufficient evidence of his intent. “In light of the additional evidence pertaining to the defendant’s state of mind that was placed before the [fact finder], we do not believe that the erroneous exclusions of evidence deprived the defendant of either his state constitutional right to testify or his federal constitutional right to present an effective defense. Because the erroneous exclusions of evidence do not amount to a constitutional violation, it is the defendant’s burden to show that the errors were harmful.” Id., 479. In this case, the defendant has not met his burden.

III

The defendant next claims that the trial court improperly rendered its finding prior to the argument of defense counsel. At the conclusion of all the evidence, prior to closing arguments, the trial court found the defendant guilty of arson in the first degree. Defense counsel, surprised at the finding before argument, stated, “I thought there would be an opportunity for argument.” At that point, the trial court reserved its decision until after argument and stated, “I’ll listen to your argument.” After argument, the trial court rendered a finding of guilty. As the defendant conceded at oral argument, he did not properly preserve this claim by objecting at trial. State v. Carter, 34 Conn. App. 58, 74, 640 A.2d 610 (1994). On appeal, the defendant, in his brief, does not request review of the claim understate v. Golding, supra, 213 Conn. 233. The defendant, however, did request Golding review at oral argument. Even had the defendant properly requested review under Golding, he could not prevail since he cannot satisfy the third requirement that he was clearly deprived of a fair trial.

“Both the Connecticut and the United States constitutions protect a defendant’s right to voice closing arguments before the trier of fact. The sixth amendment guarantee in the federal constitution of the right to assistance of counsel has been held to include the right to present closing arguments. Herring v. New York, 422 U.S. 853, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975). Also, article first, § 8, of the Connecticut constitution, which provides that ‘the accused shall have a right to be heard by himself and by counsel,’ has been held to guarantee a right to present a closing argument. State v. Hoyt, 47 Conn. 518, 534-37 (1880). The defendant enjoys the same right whether the trial is to a jury or to the bench. Herring v. New York, supra, 859-60. If the trial court denies the defendant an opportunity to give closing arguments, the reviewing court should grant a new trial. State v. Hoyt, supra, 536; see also Herring v. New York, supra [859-60].” State v. Plaskonka, 22 Conn. App. 207, 210-11, 577 A.2d 729, cert. denied, 216 Conn. 812, 580 A.2d 65 (1990). In the present case, as in Plaskonka, the defendant was given an opportunity to present a closing argument but claims that the trial court’s announcement of the guilty finding unduly prejudiced him and made the trial unfair.

The Plaskonka court stated that since the trial court announced a finding at the close of the evidence, agreed to listen to the oral argument and reduced the penalty after argument, that the defendant received fair consideration. Id., 212. Here, the trial court announced the finding after the defendant rested and then agreed to listen to oral argument. “[W]e presume that it listened with impartiality, and our review of the record discloses nothing to the contrary.” Id. Contrary to Plaskonka, the trial court here did not change its finding after argument. The fact that the trial court did not change its finding does not, however, dissuade us from concluding that the defendant received a fair trial. The Plaskonka court viewed the reduction in penalty as additional evidence to support its conclusion that the defendant received a fair trial. It would be unreasonable for us to require the trial court to change its decision for us to conclude that the defendant received a fair trial. The fact that the trial court did not announce its finding until after all the evidence was presented and also agreed to listen to oral argument is ample evidence to indicate that the defendant received a fair trial. The defendant requests that we adopt a rule that will result in a finding of a per se constitutional violation under the facts of this case. We decline to do so.

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.

       General Statutes § 53a-lll provides in pertinent part: “(a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied ....
      “(b) Arson in the first degree is a class A felony.”
      General Statutes § 53a-100 (a) provides in pertinent part: “(1) ‘Building’ in addition to its ordinary meaning, includes any watercraft, aircraft, trailer, sleeping car, railroad car or other structure or vehicle or any building with a valid certificate of occupancy. Where a building consists of separate units, sueh as, but not limited to separate apartments, offices or rented rooms, any unit not occupied by the actor is, in addition to being a part of such building, a separate building; (2) ‘dwelling’ means a building which is usually occupied by a person lodging therein at night, whether or not a person is actually present; (3) ‘night* means the period between thirty minutes after sunset and thirty minutes before sunrise.”

       Boutote testified that Richard Gillis, a construction worker, was in the trailer when the defendant entered. Gillis and Boutote testified that Gillis left before Boutote or the defendant.

       There was no witness who actually saw the match ignite. Boutote saw the defendant only strike the match.

       The defendant testified that he went to the trailer with the intent of burning the blueprints on Boutote’s desk with the kerosene. The defendant further testified that he poured the kerosene on the blueprints and left the trailer without lighting the liquid.

       The transcript reveals the following dialogue:
      “[Defense Counsel:] What happened then?
      “[The Defendant:] All right. I walked into the trailer and I had the bag with me. I had my lunch, I had the container.
      “Q. What was in the container?
      “A. Kerosene.
      “Q. What was your state of mind at this point?
      “A. My state of mind was this—
      “[State’s Attorney:] Objection, Your Honor. Self-serving hearsay.
      “Q. What was on your mind?
      “[State’s Attorney:] Objection.
      “A. What was on my mind was to go back to work.
      “[State’s Attorney:] Objection. What’s on his mind is irrelevant.
      “Q. How did you feel?
      “[State’s Attorney:] Objection. That’s not an admissible question, Your Honor.
      “[Defense Counsel:] I think it’s relevant, Your Honor.
      “The Court: How he feels? I’ll sustain the objection.
      “Q. Go ahead. What did you do?
      “A. . . . I went to take the top off the Clorox bottle. It was a half gallon bottle. I had a quart of kerosene in it. I went to take the top off. I couldn’t get the top off, my hands were greasy, so I went into the pocket. I pulled out an old timer pocket knife, and I put a hole in the side of the bottle. As I was going through I told him, ‘You ruined my plans, I’m ruining your plans here.’
      “Q. What was your intent at that point?
      “[State’s Attorney:] Objection. Self-serving. It’s for the court to conclude.
      “[Defense Attorney:] Your Honor, I think it’s important for you to know what was on his mind.
      “The Court: It’s not what he’s telling me that is on his mind. There’s got to be more than that. I’ll sustain the objection.
      “Q. What were you trying to do?
      “A. Well, I was trying to ruin the blueprints.”

       “We note that although the amendment to Practice Book § 288 eliminated the requirement that an exception be taken to an adverse ruling by the trial court, it was not amended to eliminate the requirement of an objection being made.” State v. Carter, supra, 34 Conn. App. 74.


text:
    Aetna Life and Casualty Company v. Marie Braccidiferro
    (11058)
    Landau, Freedman and Schaller, Js.

      Argued November 3, 1993
    decision released June 28, 1994

      Michael P. Del Sole, with whom, on the brief, was Rene G. Martineau, for the appellant (plaintiff).

      George H. Romania, for the appellee (defendant).

      William Gallagher, Cynthia C. Bott, Kurt Koehler, law student intern, and Thomas J. Airone, law student intern, filed a brief for The Connecticut Trial Lawyers Association as amicus curiae.
   Landau, J.

This is an appeal by the plaintiff, Aetna Life and Casualty Company (Aetna), from the denial by the trial court of an application to vacate, correct or modify the award of the arbitration panel to the defendant, Marie Braccidiferro. Aetna claims that the trial court improperly denied the application because the defendant’s claim for underinsured motorist benefits, made more than two years after the date of the accident that forms the basis of that claim, was time barred. After this court heard arguments on appeal, we ordered supplemental briefs to address the effect, if any, of Public Acts 1993, No. 93-77 (P.A. 93-77), approved on May 20,1993, to take effect upon passage.

The following facts are relevant to this appeal. On March 18, 1986, Aetna issued an insurance policy to Braccidiferro’s husband that provided, inter alia, coverage for injuries and damages sustained as a result of the negligence of an owner or operator of an uninsured motor vehicle. On April 1,1986, Braccidiferro sustained personal injuries when the vehicle she was operating was struck by a vehicle operated by Michael Murgo. Murgo’s liability coverage provided by Nationwide Insurance Company (Nationwide) totaled $50,000. On April 25,1989, Nationwide agreed to pay Braccidiferro the policy’s full liability benefits, thereby exhausting the liability coverage on the underinsured vehicle. On May 5, 1989, Braccidiferro submitted a written claim for underinsured motorist benefits to Aetna pursuant to the policy. Aetna disclaimed liability because the claim had not been presented on or before April 1,1988.

Pursuant to the policy, the dispute was submitted to arbitration and the arbitrators, in a split decision, found liability under the policy, rejecting the claim that the underinsured motorist claim was barred by a two year limitation under the policy. The majority found the claim to be timely and awarded the defendant damages. The trial court granted the defendant’s motion to confirm the award and denied Aetna’s application to vacate, correct or modify the award. This appeal followed. At the original appellate hearing, Aetna claimed that this appeal was controlled by the McGlinchey decision as that case involved the identical policy language and the same arguments. McGlinchey v. Aetna Casualty & Surety Co., 224 Conn. 133, 617 A.2d 445 (1992). Braceidiferro agreed that the McGlinchey case “dealt with, and decided specific issues presented before this court,” but claimed that “the policy provision in [her] case appear[s] to be different than those before the court in . . . McGlinchey, ” and urged this court to rule independently on the policy provision's ambiguity.

At oral argument, this court, concerned with the effect, if any, of P.A. 93-77, effective May 20, 1993, on the sole issue before it, ordered supplemental briefs filed.

This appeal is controlled by McGlinchey. We disagree with the defendant’s claim that the policy language in this appeal is different from the language found in the McGlinchey policy. The trial court’s analysis, employed in this case, as to statutory construction and ambiguity was rejected in McGlinchey, and, therefore, its decision must be reversed unless P.A. 93-77 requires a different result.

I

Applicability of P.A. 93-77 to this Appeal

Aetna asserts (1) that P.A. 93-77 is inapplicable to the facts presented in this appeal, (2) that, if the act does apply to the facts in this appeal, the provisions of the act modify the previous two year limitation contained in the insurance policy to a three year limitation requirement and Braccidiferro’s claim is still time barred, and (3) that, if the act applies to the facts presented in this appeal and invalidates the former valid policy limitation rather than modifies it, the act is unconstitutional as applied because (a) it violates article first, § 1, of the state constitution, (b) it violates the contract clause of the United States constitution and (c), applied retroactively, it deprives Aetna of due process of law, in violation of article one, § 10, of the United States constitution, the fourteenth amendment to the United States constitution and article first, § 10, of the state constitution. The defendant disagrees.

On or about May 20,1993, P.A. 93-77 was signed into law. General Statutes § 38a-290, which dealt with an insurer’s ability to limit the time within which an insured can make a claim against a policy of insurance, was amended by the new statute with the additional language: “This section shall not apply to suits and arbitration claims under the uninsured or underinsured motorist provisions of a motor vehicle insurance policy.” Public Acts 1993, No. 93-77. As to § 38a-336 of the General Statutes, the following provisions were added: “(e) 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 a motor vehicle 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.

“Sec. 3. (New) 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 . . . this act.

“Sec. 4. This act shall take effect from its passage.” Public Acts 1993, No. 93-77.

In this case, the judgment appealed from was rendered on January 4, 1992. An appeal was taken and pending on December 8, 1992. If the decision is affirmed, the date of judgment is the date the trial court rendered judgment; if the judgment is reversed, the date of judgment is the date of the Appellate Court’s decision. Connecticut Bank & Trust Co. v. Winters, 225 Conn. 146, 160, 622 A.2d 536 (1993). Aetna claims that since a final judgment had been rendered prior to the effective date of P.A. 93-77, this case remains controlled by the Supreme Court decision in McGlinchey v. Aetna Casualty & Surety Co., supra, 224 Conn. 133. Braccidiferro claims, first, that the act, by its very language, was intended to apply to all actions pending on or brought after December 8,1992, that had not been settled or had not reached a final judgment. Thus, the case having been appealed, she asserts, there is no final judgment. She also argues that although the act affects substantive rights, it should be applied retroactively because the legislature has expressed such a clear intent. See Darak v. Darak, 210 Conn. 462, 468, 556 A.2d 145 (1989); State v. Lizotte, 200 Conn. 734, 741, 517 A.2d 610 (1986).

The first issue that we must examine is the meaning of the term “final judgment” as used by the legislature in P.A. 93-77. Aetna asserts that this phrase is unambiguous, and therefore urges us to adopt a definition that the appellate courts of this state have pronounced in cases involving Practice Book § 4000. See Practice Book § 4000; State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983). The defendant, however, prompts this court to find that the meaning of this phrase is ambiguous and unclear, requiring us to consider the legislative intent behind the act. We agree with the defendant.

“ ‘Although it is axiomatic that, where the statutory language is clear and unambiguous, construction of the statute by reference to its history and purpose is unnecessary; Manchester v. Manchester Police Union, 3 Conn. App. 1, 6, 484 A.2d 455 (1984); that axiom only applies in full force “[w]here . . . the language of a statute is . . . absolutely clear” on its face and where no ambiguity is disclosed by reference to its background. (Emphasis in original.) Anderson v. Ludgin, 175 Conn. 545, 552-54, 400 A.2d 712 (1978).’ ” Dugas v. Lumbermens Mutual Casualty Co., 22 Conn. App. 27, 33, 576 A.2d 165 (1990). “ ‘A word or statute is ambiguous when capable of being interpreted by reasonably well-informed persons in either of two or more senses.' ” Federal Aviation Administration v. Administrator, 196 Conn. 546, 554, 494 A.2d 564 (1985) (Healey, J., dissenting), citing Vernon v. Waukesha County, 99 Wis. 2d 472, 477, 299 N.W.2d 593 (1980), aff’d, 102 Wis. 2d 686, 307 N.W.2d 227 (1981); 73 Am. Jur. 2d, Statutes § 258 (1974). The phrase “final judgment” is susceptible to two different meanings. The rules of practice describe “final judgment” as the moment when the right of appeal attaches to an action. See Practice Book § 4000. The alternative possibility is that the legislature meant final judgment in the sense of concluding the action.

Because this phrase is ambiguous, we must turn for guidance to the legislative history and to the purpose the statute was meant to serve. State v. Mattioli, 210 Conn. 573, 576, 556 A.2d 584 (1989). We conclude that when the legislature spoke in terms of “final judgment” it intended those words in the sense of concluding the action. The provisions of subsection (e) of § 2 of P.A. 93-77 support this interpretation. Subsection (e) sets the new three year limitation, provides for notice within that time period, and requires that suit or arbitration be commenced within 180 days after exhaustion. In setting out the requirement of suit or arbitration within 180 days from the date of exhaustion, the legislature conditioned that exhaustion be by means of “settlements or final judgments after any appeals. ’’(Emphasis added.) Furthermore, this language is followed by the § 3 requirement applying the act’s provisions to those actions pending on December 8, 1992, or thereafter that have not gone to “final judgment.” Given the statute’s language and framework, and considering that the legislature intended to encompass cases that had not been finally concluded on December 8, 1992, the date McGlinchey was published, a fair reading of the new provisions of P.A. 93-77 makes clear that the words “final judgment” mean final conclusion of the action after any appeals.

This case was not finally concluded on December 8, 1992, because an appeal was pending in this court Therefore, P.A. 93-77 is applicable to the facts of this case.

II

Aetna’s next argument is that if P.A. 93-77 is applicable, the act’s new three year time limitation for underinsured motorist claims displaces the insurance contract provision of a two year limitation within which to bring such claims. Therefore, because the claim was made three years from the date of the accident, Aetna argues, the defendant is still barred any recovery.

The statute does not provide clear guidance as to what would occur in preenactment policies that lawfully imposed a two year limitation within which to bring an underinsured motorist claim. Whether the three year limitation should be read into the language of the contract is a question of statutory construction and legislative intent. Dugas v. Lumbermens Mutual Casualty Co., 22 Conn. App. 27, 33, 576 A.2d 165 (1990). The legislature addressed this very issue, and concluded that, where possible, the policies should be rewritten to conform to the new legislation. The legislature was cognizant, however, of the potential problem that policies with the two year limitation would become the focus of litigation prior to being rewritten. In such cases, the three year limitation would be imposed upon the claim. This is a logical result because the contract was lawful when written, the parties to the contract intended that the minimum legal time limitation control underinsured motorist claims, and the law was written to have a retroactive effect on rights of the parties.

Although three years expired between the date of the accident and the time that the claim was made for underinsured motorist benefits, we decline to bar recovery to the defendant in this case because a final determination is necessary, one properly made by the trial court. The remaining inquiry is whether the three year limitation, when read into the contract, was tolled by the means provided for in P.A. 93-77. This court cannot ascertain whether the provisions of the statute have been satisfied for tolling the limitation period. William Raveis Real Estate, Inc. v. Stawski, 31 Conn. App. 608, 612, 626 A.2d 797 (1993). Therefore, the question of whether Aetna received notification of the underinsured motorist claim for benefits in writing from the claimant prior to the expiration period, i.e., three years, is a question of fact to be determined by the trial court.

Ill

Constitutionality of P.A. 93-77

In light of our determination that P.A. 93-77 applies to this case, we now address the statute’s constitutionality, which was properly raised by Aetna. Aetna argues that, should this court find that P.A. 93-77 applies to the facts presented in this appeal and that the act vitiates the policy limitation rather than modifying it, then the act is unconstitutional as applied to this case in that (a) it violates article first, § 1, of the state constitution, (b) it violates the “contract clause” of the United States constitution, and (c) applied retroactively, it deprives Aetna of due process of law, in violation of article one, § 10, of the United States constitution, the fourteenth amendment to the United States constitution and article first, § 10, of the state constitution.

A

STATE CONSTITUTIONALITY

Aetna first claims that the act violates article first, § 1, of the state constitution. This constitutional provision, as it applies to time limitations within which claims may be brought, is indifferent to the wisdom of the limitation, but insists that it be applied uniformly. Chotkowski v. State, 213 Conn. 13, 18-19, 566 A.2d 419 (1989). The provision is applicable to legislation preferring certain individuals over others when wholly unrelated to the public interest. Merly v. State, 211 Conn. 199, 212, 558 A.2d 977 (1989). Aetna posits that here there is no valid public purpose because, prior to the enactment of P.A. 93-77, the public policy of the state was clearly enunciated in General Statutes § 38a-290 (d), which allowed two years from the date of the incident within which to assert a claim for underinsured motorists benefits. Aetna labels the legislation a grant to the defendant of “exclusive public emoluments or privileges” that is denied to others, i.e., the ability to bring an action more than two years after the daté of the accident, a violation of article first, § 1. Aetna also argues that after-the-fact attempts by the legislature to revive claims that have been time barred have uniformly failed constitutional muster precisely because no public purpose has been perceived. See Chotkowski v. State, supra, 18-19; Merly v. State, supra, 212; Vecchio v. Sewer Authority, 176 Conn. 497, 408 A.2d 254 (1979); Hillier v. East Hartford, 167 Conn. 100, 355 A.2d 1 (1974); Tough v. Ives, 162 Conn. 274, 294 A.2d 67 (1974).

“[A] party challenging the constitutionality of a validly enacted statute bears the heavy burden of proving the statute unconstitutional beyond a reasonable doubt.” Beccia v. Waterbury, 192 Conn. 127, 133, 470 A.2d 1202 (1984). “[N]o enactment creating a preference can withstand constitutional attack if the sole objective of the General Assembly is to grant personal gain or advantage to an individual. Its validity is contingent, at least in part, upon its furthering a public purpose; if enacted with that end in view, legislation can be sustained even though it may incidentally confer a benefit upon an individual or a class.” (Emphasis added.) State ex rel. Higgins v. Civil Service Commission, 139 Conn. 102, 106, 90 A.2d 862 (1952).

Applying the lessons of Higgins, we conclude that P.A. 93-77 does not violate article first, § 1, of the state constitution. First, a reasonable reading of the act does not lead to the conclusion that the act was intended, as its sole objective, to grant gain or advantage to an individual. A fair reading discloses that the act represents uniform legislation affecting the entire insurance industry and its consumers. The incidental effect of benefiting the defendant does not render the act unconstitutional. Second, the act does further a public purpose. “The enactment of ‘[statutes limiting the time within which an action may be brought are the result of a legitimate legislative determination which balances the rights and duties of competing groups.’ . . .” Ecker v. West Hartford, 205 Conn. 219, 239-40, 530 A.2d 1056 (1987). Because it is based on a legitimate legislative purpose, P.A. 93-77 does not violate article first, § 1, of the Connecticut constitution.

B

CONTRACT CLAUSE

Next, Aetna argues that P.A. 93-77 violates the “contract clause” of the United States constitution. Article one, § 10, of the United States constitution provides in pertinent part: “No State shall . . . pass any . . . Law Impairing the Obligation of Contracts . . . .” It is recognized that this prohibition is not absolute but “must be accommodated to the inherent police power of the State . . . .” Energy Reserves Group v. Kansas Power & Light Co., 459 U.S. 400, 410, 103 S. Ct. 697, 74 L. Ed. 2d 569 (1983).

In our determination of whether the act violates the contract clause, “the first inquiry must be whether the state law has, in fact, operated as a substantial impairment of a contractual relationship.” Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 244, 98 S. Ct. 2716, 57 L. Ed. 2d 727 (1978). This is ascertained by weighing certain factors: (1) the severity of the impairment, (2) the extent to which it frustrates a party’s reasonable contractual expectations, and (3) the extent to which the subject matter of the impairment has been regulated in the past. Schieffelin & Co. v. Dept. of Liquor Control, 194 Conn. 165, 177-78, 479 A.2d 1191 (1984). “Minimal alteration of contractual obligations may end the inquiry at its first stage.” Allied Structural Steel Co. v. Spannaus, supra, 245. “If, however, the impairment is severe, the legislation will be subjected to an increased level of scrutiny.” Schieffelin & Co. v. Dept. of Liquor Control, supra, 178. Further, “if one buys into an enterprise already regulated in the particular to which he now objects, he buys subject to further legislation upon the same topic.” Id.

We may assume, without deciding, that the act severely impaired the contractual relationship between the parties. Since that hypothesis requires that the state regulation be further scrutinized, we next consider the reasonable expectation and regulatory facets of the question.

It is to state the obvious to report that the insurance industry is heavily regulated. The insurance industry is impacted by over 1000 statutes in this state, and has been subjected to extensive legislation dating as early as 1833. In fact, it is a widely known fact that “ ‘[t]he automobile liability insurance business is one which is extensively regulated; Simonette v. Great American Ins. Co., 165 Conn. 466, 473, 388 A.2d 453 [1973] . . . .’Roy v. Centennial Ins. Co., [171 Conn. 463, 473, 370 A.2d 1011 (1976)].” Wilson v. Security Ins. Co., 213 Conn. 532, 539, 569 A.2d 40, cert. denied, 498 U.S. 814, 111 S. Ct. 52, 112 L. Ed. 2d 28 (1990). In this case, Aetna would be hard pressed to claim ignorance to the fact that it was engaged in a highly regulated business. Nor could it be unaware of the economic and social considerations created by uninsured and underinsured motorist problems. The comprehensive state regulation of the insurance industry made it reasonably foreseeable that the issue of a limitations period and an exhaustion requirement in uninsured and underinsured motorist coverage statutes could be subject to further legislation.

Given the insurance industry’s intense regulation and the extensive period of our state’s regulation, Aetna’s reasonable expectations could not have been impaired by P.A. 93-77. The provision for a time requirement in which to file underinsured motorist benefit claims, in existence at the time the policy was written, had not endured the test of time. Complications had surfaced, none unbeknownst to Aetna, with the two year requirement in that insureds were finding that exhaustion of the underlying tortfeasor’s coverage could take a considerable amount of time. An expansion in the duration of an insurer’s exposure to having claims asserted against it from two to three years cannot be regarded as a substantial impairment of the parties’ contractual relationship. See Schieffelin & Co. v. Dept. of Liquor Control, supra, 194 Conn. 182.

Because we conclude that there was minimal impairment of the contractual relationship of the parties, further analysis is not required. Thus, P.A. 93-77 does not violate the contract clause of the United States constitution.

C

DUE PROCESS

We are cognizant that General Statutes § 55-3 provides: “No provision of the general statutes, not previously contained in statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect,” and that the presumption of legislative intent that statutes affecting substantial rights shall apply prospectively only. Darak v. Darak, 210 Conn. 462, 467, 556 A.2d 145 (1989). This presumption is rebutted only when the legislature “ ‘clearly and unequivocally’ expresses its intent that the legislation shall apply retrospectively.” Id., 468; State v. Lizotte, 200 Conn. 734, 741, 517 A.2d 610 (1986). The language of P.A. 93-77 demonstrates that it was intended by the legislature to apply retroactively. “The general rule is that laws are to be interpreted as operating prospectively and considered as furnishing a rule for future cases only, unless they contain language unequivocally and certainly embracing past transactions.” Massa v. Nastri, 125 Conn. 144, 146-47, 3 A.2d 839 (1939). “It is a rule of construction that legislation is to be applied prospectively unless the legislature clearly expresses an intention to the contrary.” Moore v. McNamara, 201 Conn. 16, 22, 513 A.2d 660 (1986). Section 3 of P.A. 93-77 states that it applies to any “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 . . . .” This is clear and unequivocal language that the section embraces past transactions falling within that particular time period.

Because we have concluded that P.A. 93-77 applies retroactively, we must consider Aetna’s claim that the act violates due process constitutional guarantees set out in the fourteenth amendment to the United States constitution and article first, § 10, of the Connecticut constitution. Aetna argues that it had a vested right in the insurance contract provision requiring written demand for arbitration to be brought within two years of the date of the accident. It further argues that the two year policy provision does not operate as a statute of limitation and that the act imposes new obligations in violation of the constitutions.

Our rule of statutory construction that legislation applies prospectively unless there is an expression to the contrary by the legislature “is rooted in the notion that it would be unfair to impose a substantive amendment that changes the grounds upon which an action may be maintained on parties who have already transacted or who are already committed to litigation. See Lavieri v. Ulysses, 149 Conn. 396, 401, 180 A.2d 632 (1962); E. M. Loew’s Enterprises, Inc. v. International Alliance, 127 Conn. 415, 418, 17 A.2d 525 (1941). In civil cases, however, unless considerations of good sense and justice dictate otherwise, it is presumed that procedural statutes will be applied retrospectively. See State v. Paradise, 189 Conn. 346, 351, 456 A.2d 305 (1983); Lavieri v. Ulysses, supra [401]. Procedural statutes have been traditionally viewed as affecting remedies, not substantive rights, and therefore leave the preexisting scheme intact. See, e.g., Sherry H. v. Probate Court, 177 Conn. 93, 100-102, 411 A.2d 931 (1979).” Moore v. McNamara, supra, 201 Conn. 22.

“ ‘A statute of limitations is generally considered to be procedural, especially where the statute contains only a limitation as to time with respect to a right of action and does not itself create the right of action. Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 195, 286 A.2d 308 (1971).’ Collucci v. Sears, Roebuck & Co., 585 F. Sup. 529, 532 (D. Conn. 1984). This is so because it is considered that the limitation merely acts as a bar to a remedy otherwise available. Lewis v. Rosen, 149 Conn. 734, 735, 181 A.2d 592 (1962).” Moore v. McNamara, supra, 201 Conn. 22.

Aetna is not unconstitutionally divested of its substantive rights without due process of law by P.A. 93-77 because there is not an issue of substantive law implicated. The act merely expands the period of time in which an insured may bring an arbitration action against the insurer for uninsured motorist benefits. Previous to the passage of the act, General Statutes § 38a-290 was merely an authorization by the legislature for insurance companies to reduce the six year statute of limitations normally implemented in contract actions to two years. The act modifies that authorization to a three year period. The statutorily authorized reduction of the limitations period contained in General Statutes § 38a-290 and P.A. 93-77 operates as a procedural limitation on available remedies rather than a substantive limitation on the rights conferred by statute. The act does not create a right of action but merely sets a minimum time period in which to bring the action. Should the procedural limitation period be removed, the right to bring the action still exists by virtue of General Statutes § 38a-336. Thus, we conclude that the statute authorizing a reduction of the statute of limitations is procedural and remedial, not directed to substantive rights, and can be applied retroactively without divesting Aetna of a substantive right without due process of law. Miller v. Kirshner, 225 Conn. 185, 203, 621 A.2d 1326 (1993).

The case is remanded for a determination, applying P.A. 93-77, of whether the minimum three year period was tolled pursuant to the provisions of the act. In the event that the trial court finds that the three year period has been tolled, the judgment is affirmed. In the event, however, that the court finds that the time period has not been tolled, the judgment is reversed and the case is remanded with direction to render judgment granting the application to vacate.

In this opinion the other judges concurred.

       The insurance policy issued by Aetna, under which benefits were sought, provides in pertinent part:
      “PART C. UNINSURED MOTORISTS COVERAGE
      “1. The INSURING AGREEMENT is amended as follows.

        “a. The following is added to the first paragraph: We will pay under this coverage only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements.
      “b. Item 5 is added to the definition of ‘Uninsured motor vehicle’: 5. Which is an underinsured motor vehicle.
      “PART F. GENERAL PROVISIONS
      * ** *
      “2. The LEGAL ACTION AGAINST US provision is replaced by the following: LEGAL ACTION AGAINST US
      “No legal action may be brought against us until there has been full compliance with all the terms of this policy.
      * * *
      “In addition, under Part C, no legal action may be brought after two years from the date of accident.”

       The arbitration panel gave the following reasons, whether appropriate or not, for its decision: “[General Statutes §] 38-27 authorizes an insurer to establish time limits within which claims shall be submitted. It talks about ‘uninsured motorist claims.’ The claim in issue is an ‘underinsured motorist claim.’ Further, the statute does not limit the time within which claims can be submitted. It authorizes the insurer to so limit if it desires. Ordinarily in the construction of statutes and contracts the word shall imports a mandatory obligation, and the word may imports a discretionary action. Aetna included the word may in its provision, not the mandatory shall. Still further, the statute addresses itself to uninsured motorist claims, not underinsured claims. The former accrues as of the date of accident with the uninsured motor vehicle. The latter accrues only upon the exhaustion of the underlying coverage by payment of a settlement or a judgment. Until exhaustion occurs there is no underinsured motorist claim. It would be unfair to impose the limitations authorized by § 38-27 upon an underinsured motorist claim before it exists.”

       On March 26,1992, this court granted Aetna’s motion to stay this appeal until twenty days after the decision of the Supreme Court in McGlinchey v. Aetna Casualty & Surety Co., 224 Conn. 133, 617 A.2d 445 (1992) (decision released December 8, 1992).

       Public Acts 1993, No. 93-77, provides in pertinent part: “Sec. 3, (New) No uninsured or underinsured motorist claim or action pending on Decernber 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.”

       Because we have determined that the act’s retroactive effect, though limited, is authorized by the statutory language, the defendant’s alternative argument that P.A. 93-77 should be applied retroactively because of clear legislative intent is moot.

       Our review of the legislative testimony discloses that proponents of the act first seem to advocate imposing the three year limitation on a policy that provides for a two year provision, and then seem to contradict this intent. In fact, however, the proponents intended that where, after the enactment of P.A. 93-77, an insurer either issued a policy with a time limitation less than three years in direct contravention of the statutory mandate, or where an insurer failed to rewrite a policy that provided a two year limitation before an underinsured motorist claim arose under the policy, the two year provision would be invalidated and a claim for underinsured motorist benefits would be time barred only by the usual statute of limitations for contract actions in this state, six years. Here, however, where the insurer’s two year provision was in place before the act was enacted and became the focus of a controversy before the insurer could rewrite the policy, the three year limitation displaces the two year period.

       “[I]t is presumed that the parties bargained with each other on the basis of existing law. Williamson v. Massachusetts Bonding & Ins. Co., 19 Conn. Sup. 59, 62, 109 A.2d 896 (1954).” Aetna Casualty & Surety Co. v. Lighty, 3 Conn. App. 697, 701, 491 A.2d 1118 (1985).

       According to the statute, notification must be in writing and alert the insurer of the underinsured motorist claim. Therefore, the fact that Aetna may have been the no-fault insurance carrier does not establish the proper notification.

       “ ‘Constitutional issues are not considered unless absolutely necessary to the decision of a case ... or unless sufficient public interest warrants such a review.’ State v. DellaCamera, 166 Conn. 557, 560-61, 353 A.2d 750 (1974).” Chotkowski v. State, 213 Conn. 13, 16-17, 566 A.2d 419 (1989). In this case, the constitutional issue of the validity of the act requires our consideration because resolution is absolutely necessary to a decision of the case.

       Article first, § 1, of the state constitution provides: “All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community.”

       The cases cited by Aetna for the proposition that “after the fact attempts by the legislature to revive claims which were time barred have uniformly failed constitutional muster precisely because no public purpose has been perceived,” are inapposite to the case at bar because they involve the constitutionality of special acts enacted solely for the benefit of a certain limited, named individual or group.

       “Laws regulating insurance first appeared in 1833. ... In 1865, the legislature created a position of insurance commissioner, a gubernatorial appointment for a three-year term. The commissioner’s responsibilities were to ensure that companies complied with the statute, and to refer those who did not to the State’s Attorney.” State of Connecticut, Legislative Program Review and Investigations Committee, Insurance Regulation in Connecticut p. 8 (January 1988).

       The McGlinchey case itself, in which Aetna was a party, signaled serious problems with the time requirement in this area.

       “If the state regulation constitutes a substantial impairment, the State, in justification, must have a significant and legitimate public purpose behind the regulation . . . .” (Citation omitted.) Energy Reserves Group, Inc. v. Kansas Power & Light Co., supra, 459 U.S. 411. The contract clause equation requires a final step to determine “whether the means chosen to implement the stated or perceived public purpose is constitutionally deficient,” if we conclude first that the state law operates as a substantial impairment of the parties’ contractual relationship. Schieffelin & Co. v. Dept. of Liquor Control, supra, 194 Conn. 184; Energy Reserves Group, Inc. v. Kansas Power & Light Co., supra, 411.

       Even if we were to find that the act constitutes a substantial impairment of a contractual relationship, its passage may be justified because the state regulation has a significant and legitimate public purpose in both providing reasonable and fair guidelines for bringing uninsured and underinsured motorists actions and limiting a legislative perceived effect of the McGlinchey decision on the already overloaded judicial system. See United States Trust Co. v. New Jersey, 431 U.S. 1, 22, 97 S. Ct. 1505, 52 L. Ed. 2d 92 (1977).

       The fact that Aetna may no longer have the ability to bar the defendant’s claim for arbitration is simply an incident of the procedural modification imposed by P.A. 93-77. Aetna is subject to no new liability.