author: MIHALAKOS, J.

text:
    STATE OF CONNECTICUT v. LEOTIS PAYNE
    (AC 20232)
    Mihalakos, Zarella and Daly Js.
    Argued September 29, 2000
    officially released May 29, 2001

      Conrad Ost Seifert, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael A. Pepper, senior assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Leotis Payne, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c/ robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), robbery in the second degree in violation of General Statutes § 53a-135 (a) (l), larceny in the second degree in violation of General Statutes § 53a-123 (a) (3), carrying a pistol without a permit in violation of General Statutes § 29-35 and criminal possession of a firearm in violation of General Statutes (Rev. to 1993) § 53a-217 (a). The defendant claims that the court improperly (1) failed to excuse a juror who allegedly had been asleep during portions of the trial and that such failure constituted a “structural error” in the trial, (2) refused to grant him a new trial as a result of certain allegedly improper remarks made by the assistant state’s attorney during closing argument, (3) charged the jury in its instructions relative to the defendant’s consciousness of guilt and (4) instructed the jury that reasonable doubt is not doubt that is suggested by the “ingenuity of counsel.” We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On October 24, 1994, Jose Marrero, his future wife, Amy Cobain, Devon McFarlane and the victim, Louis Hood (victim’s group), were on Frank Street in New Haven. Marrero, Hood and Cobain entered a store for the purpose of getting change for Marrero’s $100 bill. At the same time, the defendant, Eaker McClendon and Alexander Lacks (defendant’s group) were outside the store, talking with Steven Thomas. The defendant’s group also entered the store when Marrero attempted to change his $100 bill.

While returning to Hood’s residence, the victim’s group was followed by the defendant’s group. Thereafter, the defendant approached Cobain and placed a gun to her head. Marrero jumped between the defendant and Cobain, and urged the defendant in street parlance not to shoot. Cobain and McFarlane ran off down the street. The defendant then told Marrero to give up his valuables, proceeded to rifle through his pockets and removed his money. The defendant then backed up and began to squeeze the trigger of his handgun. Hood was fatally shot in his attempt to push Marrero away. Cobain and McFarlane heard the shot. McFarlane glanced back and saw the defendant with a gun in his hand.

Officer Edwin Rodriguez of the New Haven police department was the first police officer to arrive at the scene. He observed Hood motionless and unconscious on the ground with a bullet wound in his left arm. No handgun or spent shells were found at the scene. An autopsy revealed that Hood’s left arm had been crossed in front of his chest when he was shot. The bullet struck his arm and moved through his chest cavity. Thereafter, the defendant was convicted and this appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly failed to excuse a juror who allegedly had been asleep during portions of the trial and that such failure constituted a structural error in the trial. We disagree. Although the defendant has presented these claims as two separate issues, we will address them as one.

On the second day of evidence, the court noted on the record that it had been brought to its attention, by the court monitor and the sheriff, that a juror might be having some difficulty staying awake. Neither party commented and the trial proceeded. On the next day of evidence, the court again noted for the record the juror’s physical mannerisms. Defense counsel suggested that the court question the juror. After conducting the inquiry, the prosecutor opined that the juror had been sleeping. Defense counsel disagreed and argued in defense of the juror’s behavior. The prosecutor again argued that the juror’s behavior was inappropriate and that he should be excused. Again, defense counsel disagreed. Thereafter, the court made no finding as to whether the juror had been asleep and, at defense counsel’s request, declined to dismiss the juror. Following that colloquy, there was no further mention of the juror’s behavior throughout the remainder of the trial.

The defendant asserts that his claim, although not raised at trial, is reviewable pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The state, however, argues that the defendant’s claim is not one that is unpreserved, but one that was waived at trial. The state claims, and we agree, that the defendant’s claim should fail because Golding does not establish an avenue of appellate review for claims that were waived at trial under those circumstances.

Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id. “The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” (Internal quotation marks omitted.) State v. Turner, 62 Conn. App. 376, 392, 771 A.2d 206 (2001).

“In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” State v. Golding, supra, 213 Conn. 240. In State v. Cooper, 38 Conn. App. 661, 666-67, 664 A.2d 773, cert. denied, 235 Conn. 908, 665 A.2d 903 (1995), cert. denied, 517 U.S. 1214, 116 S. Ct. 1837, 134 L. Ed. 2d 940 (1996), we held that a defendant could not satisfy the third prong of Golding where he had implicitly waived at trial a challenge to the alleged constitutional deprivation that was the basis of his claim on appeal. Therefore, a defendant cannot prevail under Golding on a claim that he implicitly waived at trial. See id.

In the present case, it is clear that the defendant waived any claim concerning the allegedly sleeping juror. Defense counsel was apprised by the court that a juror may have been sleeping and, yet, counsel continuously argued that the juror had not been asleep and that his behavior was not inappropriate. “A defendant must avail himself of the opportunity to make an objection and if he ‘does not avail himself of the opportunity, he must be holden to a waiver of the objection. ’ ” (Internal quotation marks omitted.) State v. Tate, 59 Conn. App. 282, 285, 755 A.2d 984, cert. denied, 254 Conn. 935, 761 A.2d 757 (2000). “To allow the defendant to seek reversal now that his trial strategy has failed would amount to allowing him to induce potentially harmful error, and then ambush the state with that claim on appeal.” (Internal quotation marks omitted.) State v. Cooper, supra, 38 Conn. App. 670.

Therefore, because defense counsel was informed by the court of potential juror misconduct, was given the opportunity to object, refused to make an objection, argued in defense of the juror’s behavior and, furthermore, requested that the court not dismiss the juror, we conclude that defense counsel’s conduct amounts to an implicit waiver of any objection he may have brought concerning the allegedly sleeping juror. Because the defendant waived his claim at trial, he cannot satisfy Golding and, accordingly, his claim must fail.

II

A

The defendant next claims that certain comments made by the assistant state’s attorney during his closing argument were improper and violated the defendant’s right to a fair trial. We disagree.

The following additional facts are relevant to our resolution of the defendant’s claim. During his initial argument to the jury, the assistant state’s attorney stated that “[the defendant] probably got himself involved in another robbery a couple of days later.” Defense counsel immediately objected. The court sustained the objection and stated, in front of the jury, that the statement was unsupported by the evidence and was not a logical or reasonable inference. Defense counsel did not request either a curative instruction or a mistrial. During his rebuttal argument to the jury, the assistant state’s attorney stated that “[a]ll [the victim’s] family has left is his picture. Now on a slab, on a cutting board. . . . Let them come away with a guilty verdict ...” The next day, before the court charged the jury, the defendant objected to the references to the victim’s body and the comments concerning the victim’s family as an inappropriate plea for sympathy. Defense counsel also requested a curative instruction, which the court incorporated into its final jury charge.

“Prosecutorial misconduct may . . . occur in the course of closing argument. . . . Such argument may be, in light of all of the facts and circumstances, so egregious that no curative instruction could reasonably be expected to remove [its] prejudicial impact. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” (Citation omitted; internal quotation marks omitted.) State v. Rivera, 61 Conn. App. 763, 769, 765 A.2d 1240, cert. denied, 256 Conn. 901, 772 A.2d 599 (2001); see State v. Heredia, 253 Conn. 543, 561, 754 A.2d 114 (2000).

“[T]o determine whether claims of prosecutorial misconduct amounted to a denial of due process, we must decide whether the challenged remarks were improper, and, if so, whether they caused substantial prejudice to the defendant. ... To make this determination, we must focus on several factors: (1) the extent to which the misconduct was invited by defense conduct or argument; (2) the severity of the conduct; (3) the frequency of the conduct; (4) the centrality of the misconduct to the critical issues of the case; (5) the strength of the curative instructions adopted; and (6) the strength of the state’s case.” (Citations omitted; internal quotation marks omitted.) State v. Rivera, supra, 61 Conn. App. 769-70; State v. Forde, 52 Conn. App. 159, 172, 726 A.2d 132, cert. denied, 248 Conn. 918, 734 A.2d 567 (1999). “When a verdict is challenged on the basis of the prosecutor’s allegedly prejudicial remarks, the defendant bears the burden of proving the remarks prejudicial in light of the whole trial.” (Internal quotation marks omitted.) State v. Rivera, supra, 770. With those princi-pies in mind, we must now determine whether the defendant was denied a fair trial.

Our review of the record discloses that the court incorporated a curative instruction concerning the assistant state’s attorney’s improper plea for sympathy for the victim’s family. See footnote 8. Although defense counsel promptly objected to the statement that the defendant had been involved in another robbery, counsel did not request a specific curative instruction concerning that statement. The court did state, in front of the jury, that the comment was unsupported by the evidence and that such a conclusion could not be logically or reasonably inferred from the evidence presented. Furthermore, the jury did receive instructions “not [to] speculate or consider any other charges against this defendant . . . that may have come to mind to you in the course of this trial” and “not [to] go outside the evidence introduced into court to find facts.” Therefore, we conclude that the court’s comments concerning the defendant’s objection and the instructions given to the jury were adequate to remedy any possible harm the defendant may have suffered as a result of the assistant state’s attorney’s comments.

The record also discloses that the challenged statements were not invited by defense counsel’s argument and were not central to critical issues of the proceeding. Furthermore, considering the strength of the state’s case against the defendant, we cannot conclude that the defendant was denied due process as a result of the assistant state’s attorney’s comments.

The challenged statements made by the assistant state’s attorney clearly were improper. The statements, however, were made only during closing arguments and were not repeated throughout the course of the trial. “The fact that all of the defendant’s claims focus on allegedly prejudicial remarks made only during closing argument demonstrates that such comments were not a pervasive quality of the entire proceeding.” State v. Rivera, supra, 61 Conn. App. 774. See, e.g., State v. Kenney, 53 Conn. App. 305, 324-25, 730 A.2d 119, cert. denied, 249 Conn. 930, 733 A.2d 851 (1999). We, therefore, cannot conclude that “in the context of the entire trial . . . the defendant met [his] burden of proving that the argument deprived [him] of a fair trial.” State v. Rivera, supra, 774. Accordingly, we are convinced that the defendant was not denied a fair trial.

B

The defendant also claims that two further remarks made by the assistant state’s attorney during closing argument denied him a fair trial. The assistant state’s attorney stated that the defendant had an interest in distorting the truth because if “convicted he will probably get a substantial sentence in this case.” Also during closing arguments, the assistant state’s attorney vouched for the credibility of one of the state’s witnesses as well as for his own integrity and credibility as a prosecutor. The defendant did not object to those remarks, nor did he request that the court give the jury a curative instruction. The defendant now seeks review pursuant to Golding and the plain error doctrine; Practice Book § 60-5; and requests that this court invoke its supervisory power and order a new trial.

It is well established that “[w]e will not afford Golding review to [unpreserved] claims of prosecutorial misconduct where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial.” (Internal quotation marks omitted.) State v. Perry, 58 Conn. App. 65, 69, 751 A.2d 843, cert. denied, 254 Conn. 914, 759 A.2d 508 (2000); see State v. Atkinson, 235 Conn. 748, 769, 670 A.2d 276 (1996); State v. Williams, 231 Conn. 235, 246, 645 A.2d 999 (1994). It is clear that the remarks occurred only during closing arguments and, therefore, did not amount to a pattern of misconduct throughout the trial. Accordingly, the remarks by the assistant state’s attorney did not violate the defendant’s right to a fair trial. Therefore, because there is no constitutional violation, the defendant’s claim fails to satisfy the second prong of Golding.

We also conclude that the conduct of the assistant state’s attorney does not constitute plain error. “It is well settled . . . that a defendant may not prevail under . . . the plain error doctrine unless the prosecutorial impropriety was so pervasive or egregious as to constitute an infringement of the defendant’s right to a fair trial . . . .” (Internal quotation marks omitted.) State v. Aldrich, 53 Conn. App. 627, 632, 733 A.2d 237, cert. denied, 250 Conn. 909, 734 A.2d 989 (1999); see State v. Satchwell, 244 Conn. 547, 564, 710 A.2d 1348 (1998). As previously stated, the defendant has failed to prove that the assistant state’s attorney’s conduct, in the context of the entire trial, amounted to a pattern of misconduct so pervasive and egregious that it denied him a fair trial. Accordingly, we conclude that the conduct of the assistant state’s attorney does not amount to plain error.

Furthermore, because we conclude that there was no pattern of prosecutorial misconduct throughout the trial, we decline to invoke our supervisory power and order a new trial. See State v. Pouncey, 241 Conn. 802, 816, 699 A.2d 901 (1997). The defendant, therefore, cannot prevail on his claim.

Ill

The defendant next claims that the court improperly instructed the jury as to consciousness of guilt. The state argues that the defendant’s claim is unpreserved and, furthermore, is unreviewable under Golding because it is not constitutional in nature. We agree.

It is clear that the claim is unpreserved because the defendant did not file a request to charge or take an exception after the charge was delivered. Pursuant to Practice Book § 42-16, “[t]o preserve a challenge to the jury charge, the defendant must make a written request to charge, or take exception to the jury instructions when they are given by the trial court.” (Internal quotation marks omitted.) State v. Faria, 254 Conn. 613, 632, 758 A.2d 348 (2000). “This court is not bound to review claims of instructional error if the party raising the claim neither submitted a written request to charge, nor excepted to the charge given by the trial court. Practice Book [§ 42-16]. The purpose of [Practice Book § 42-16] is to alert the court to any claims of error while there is still an opportunity for correction in order to avoid the economic waste and increased court congestion caused by unnecessary retrials.” (Internal quotation marks omitted.) State v. Faria, supra, 632. We therefore conclude that the defendant’s claim is unpreserved.

Having established that the defendant’s claim is unpreserved, we must now determine if it warrants Golding review. The defendant’s claim fails to satisfy the second prong of Golding because it is not constitutional in nature. “It has . . . been stated numerous times that consciousness of guilt issues are not constitutional and, therefore, are not subject to review under the . . . Golding standard.” (Internal quotation marks omitted.) State v. Gibson, 56 Conn. App. 154, 160, 742 A.2d 397 (1999); see State v. Robinson, 227 Conn. 711, 732, 631 A.2d 288 (1993); State v. Snead, 41 Conn. App. 584, 591, 677 A.2d 446 (1996); State v. Merritt, 36 Conn. App. 76, 96, 647 A.2d 1021 (1994), appeal dismissed, 233 Conn. 302, 659 A.2d 706 (1995). Furthermore, we conclude that the court’s charge does not amount to plain error. We therefore decline to review the defendant’s unpreserved claim.

IV

The defendant claims finally that the court’s instruction to the jury that reasonable doubt is not doubt that is suggested by the “ingenuity of counsel” violated his right to a fair trial.- The defendant failed to preserve his claim by requesting a charge on reasonable doubt or objecting to the reasonable doubt instruction given by the court and, therefore, seeks Golding or plain error review. The defendant’s claim, however, fails to satisfy the second prong of Golding. Claims concerning the court’s instruction on reasonable doubt raised by the “ingenuity of counsel” are not constitutional in nature and, therefore, are not subject to Golding or plain error review. State v. Hines, 243 Conn. 796, 816-18, 709 A.2d 522 (1998); State v. Taylor, 239 Conn. 481, 504-505, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997). Accordingly, we also decline to review the defendant’s unpreserved claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54c provides in relevant part: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery . . . and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants . . . ."

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”

       General Statutes § 53a-135 (a) provides in relevant part: “A person is guilty of robbery in the second degree when he commits robbery as defined in section 53a-133 and (1) he is aided by another person actually present. . . .”

       General Statutes § 53a-123 (a) provides in relevant part: “A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119, and ... (3) the property, regardless of its nature or value, is taken from the person of another . . . .”

       General Statutes § 29-35 (a) provides in relevant pari,: “No person shall carry any pistol or revolver upon one’s person, except when such person is within the dwelling house or place of business of such person, without, a permit to carry the same issued as provided in section 29-28. . . .”

       General Statutes (Rev. to 1993) § 53a-217 (a) provides in relevant part: “A person is guilty of criminal possession of a firearm . . . when he possesses a firearm . . . and has been convicted of ... a class A felony . . . .”

       In response to the opinion of the assistant state’s attorney that the juror had been sleeping, defense counsel stated: “My life’s experience has taught me that sometimes I do [my] best listening with my eyes closed. [The juror] ’s paid attention and looked up every time exhibits were passed. I have made eye contact with him, as well as with other members of the jury. He’s come out and been frank with us.”

       In response to the defendant’s objection, the court gave the following curative instruction: “Nor should you be influenced by any sympathy for the accused and his family, nor for the victim and his family, the Hood family, or any other person who might be affected by your decision.”

       At trial, Levon Sowell, a witness for the defense, testified that McFarlane had told him that “[McFarlane] was the witness of a murder that he don’t even know what happened” and that “the prosecutor told [McFarlane what] to say — to get on the stand, and if [McFarlane] got on the stand his probation will be reinstated.” The prosecutor responded, during his closing argument, as follows: “I guess [Sowell’s] claim is that I am telling witnesses like [McFarlane] that you got to testify to something you didn’t see. Well, if that’s the claim, let me make this clear to you. I understand that that’s wrong, and I also understand that I am not really, I don’t really want to lose my job for doing something like that.”

       See part I.

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent, to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. ...”

       See part I.

       Practice Book § 42-16 provides: “An appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of exception. The exception shall be taken out of the hearing of the jury.”

       The court’s instruction on reasonable doubt, in relevant part, was as follows: "Reasonable doubt. The meaning of reasonable doubt can be arrived [at] by emphasizing the word reasonable. It is not a surmise, a guess, a mere conjecture, nor is it doubt suggested by ingenuity of counsel . . . not warranted by the evidence.”

       See part I.

       We note that in State v. Taylor, 239 Conn. 481, 504-505, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997), our Supreme Court suggested that the “ ‘ingenuity of counsel’ language, taken alone, might be problematic, and . . . ought to be avoided in the future.” State v. Hines, 243 Conn. 796, 817-18 n.15, 709 A.2d 522 (1998). We do not attempt to retract this recommendation, but note that the court in the present case charged the jury prior to the release of Taylor and, accordingly, could not have ignored our Supreme Court’s subsequent admonition of this practice. See id.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    NANCY CHARLEMAGNE v. PROGRESSIVE NORTHWESTERN INSURANCE COMPANY
    (AC 21055)
    Schaller, Mihalakos and Hennessy, Js.

      Submitted on briefs March 2
    officially released May 29, 2001

      Robert E. Young filed a brief for the appellant (defendant-third party plaintiff).

      Lawrence L. Connelli filed a brief for the appellee (third party defendant).
   Opinion

HENNESSY, J.

The third party plaintiff, Progressive Northwestern Insurance Company (Progressive), appeals from the summary judgment rendered in favor of the third party defendant, USAA Casualty Insurance Company (USAA). Progressive claims on appeal that the trial court improperly concluded that there was no genuine issue of material fact as to the residency of Dana Bitgood and improperly denied its oral motion for a continuance and written motion to reargue. We reverse the judgment of the trial court.

The underlying action resulted from a March 3, 1998 motor vehicle accident in which the plaintiff, Nancy Charlemagne, was rear-ended by Dana Bitgood, an uninsured motorist. Dana Bitgood is the daughter of Kathleen Bitgood, an insured of the third party defendant, USAA. The plaintiff brought an action against Progressive, her uninsured motorist carrier, to recover for injuries she sustained in the accident. Thereafter, Progressive brought an action for indemnification against USAA, alleging that the injuries and losses claimed were the legal responsibility of USAA pursuant to the terms of its insurance contract with Kathleen Bitgood. Progressive argued that Dana Bitgood was a resident relative of Kathleen Bitgood at the time of her car accident and was thus covered under Kathleen Bitgood’s insurance contract with USAA. USAA claimed that Dana Bitgood did not reside with Kathleen Bitgood at the time of the accident and, as a result, USAA had no legal responsibility for the injuries and losses caused by Dana Bitgood. The court granted USAA’s motion for summary judgment. This appeal followed.

“The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. . . . When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. . . . Our review of the trial court’s granting of a motion for summary judgment is, therefore, plenary.” (Citation omitted; internal quotation marks omitted.) Bishel v. Connecticut Yankee Atomic Power Co., 62 Conn. App. 537, 542-43, 771 A.2d 252, cert. denied, 256 Conn. 915, 773 A.2d 943 (2001).

“The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Id., 543. USAA attached the affidavit of Kathleen Bitgood to its motion for summary judgment to support its assertion that no issue of material fact existed as to USAA’s liability for injuries resulting from the March 3, 1998 accident. Kathleen Bitgood’s affidavit stated in relevant part: “At the time of the motor vehicle accident on March 3, 1998, Dana Bitgood did not reside with me at 16 Brook Road in Niantic. She had not lived at 16 Brook Road in Niantic for at least one year prior to March 3, 1998.”

“In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summaiy judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.” (Internal quotation marks omitted.) Id. Further, “the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Internal quotation marks omitted.) Id. Progressive claims that it raised a genuine issue of material fact sufficient to defeat USAA’s motion for summary judgment. Specifically, Progressive submitted Dana Bit-good’s death certificate, which listed her residence as being the same as that of her mother, Kathleen Bitgood, thereby contradicting Kathleen Bitgood’s affidavit that Dana Bitgood did not reside with her. Progressive argues that this contradictory evidence concerning residency raises a genuine issue of material fact and is sufficient to defeat the motion for summary judgment.

“[I]t [is] incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists.” (Internal quotation marks omitted.) Id. The court found that Progressive did not file an opposing affidavit, but did submit a police report from the March 3, 1998 accident, a death certificate dated October, 1998, and a motor vehicle license, all of which showed Dana Bitgood’s address as 16 Brook Road, Niantic. The court did not find these documents persuasive as to Dana Bitgood’s address. The court reasoned that the death certificate was dated seven months subsequent to the date of the accident and that the motor vehicle license was issued three years prior to the date of the accident. As to the address listed on the accident report, the court indicated that the police took that address from the motor vehicle license, thereby rendering it no more persuasive than the driver’s license itself. The court concluded: “Accordingly, the court finds that Dana Bitgood did not live at 16 Brook Road at the time of the accident. She was not there as a resident relative at the time of the accident, and, therefore, USAA does not become liable to cover claims in this case.”

“In United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 [1962], the United States Supreme Court noted that summary judgment should have been denied where a study of the record revealed that inferences contrary to those drawn by the trial court might be permissible and thus raise a genuine issue as to the ultimate facts.” United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). “[A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.” Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 624, 64 S. Ct. 724, 88 L. Ed. 967 (1944). The facts of this case fall within the purview of these United States Supreme Court cases. Additionally, Connecticut law provides that “[s]ummary judgment should be denied where the affidavits of the moving party do not affirmatively show that there is no genuine issue of fact as to all of the relevant issues of the case.” (Internal quotation marks omitted.) Doty v. Shawmut Bank, 58 Conn. App. 427, 431, 755 A.2d 219 (2000).

Applying these principles in this case, we disagree with the conclusion of the court that there exists no genuine issue of material fact. The death certificate lists Dana Bitgood’s residence as 16 Brook Road, Niantic, the same address as her mother, Kathleen Bitgood. If believed, the trier of fact could find her to be a resident relative in the home of Kathleen Bitgood at the time of the accident. Thus, we conclude that there is a genuine issue of a material fact. The fact that the date of the death certificate was seven months after the accident, as was found by the court, is not relevant for purposes of determining whether it presents an inference that raises a genuine issue of fact.

In view of our holding, we need not address the other issues raised by the third patty plaintiff.

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

In this opinion the other judges concurred.

       Dana Bitgood has since died.

       The contract of insurance was not filed as an exhibit in this case; however, none of the parties challenges the fact that there was an insurance policy in effect on the date of the accident and that Dana, to be covered, had to be a resident relative in Kathleen’s house.

       Kathleen Bitgood’s address is 16 Brook Road, Niantic. The court, although stating that it should not take cognizance of the motor vehicle license and the police report because they were not properly authenticated, did accept the death certificate and ruled on the persuasiveness, or lack thereof, of the license and police report.


author: FOTI, J.

text:
    ANTHONY CALANDRO ET AL. v. ALLSTATE INSURANCE COMPANY
    (AC 19273)
    Foti, Dranginis and Stoughton, Js.
    Argued March 22
    officially released June 5, 2001

      Linda L. Morkan, with whom were Daniel F. Sullivan and, on the brief, Jeffrey C. Kestenband, for the appellant (named defendant).

      JohnB. Farley, with whom, on the brief, was Richard. C. Tynan, for the appellee (third party defendant).
   Opinion

FOTI, J.

The defendant, Allstate Insurance Company (Allstate), appeals from the judgment rendered after a trial to the court in favor of the third party defendant, Biller Associates, Inc. (Biller Associates). Allstate claims that the trial court improperly failed to conclude that (1) Biller Associates’ conduct toward Allstate violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and (2) Biller Associates’ submission of a certain claim for damages to Allstate violated CUTPA. We affirm the judgment of the trial court.

The detailed facts and procedural history that follow are necessary for our resolution of Allstate’s claims. The plaintiffs, Anthony Calandro and Cynthia Calandro, owned property known as 232 Short Beach Road in the town of East Haven. Prior to November 18, 1991, the plaintiffs entered into a contract with Allstate to insure that property against, inter alia, fire damage. On November 18, 1991, the property sustained fire damage. The plaintiffs hired Biller Associates, a public adjuster, to settle their claim with Allstate for damages caused by the fire in accordance with the terms of their insurance policy.

From the outset, disagreements between Biller Associates and Allstate hampered the speedy resolution of the plaintiffs’ claim. As the court aptly characterized it, “[t]he atmosphere of these negotiations quickly became acrimonious.” By February, 1992, Allstate and Biller Associates came to different damage estimates based on their conflicting opinions concerning the nature and extent of the damage caused by the fire, and the nature of necessary repairs to the damaged structure. For example, Biller Associates’ estimate included $8135.24 for repairs to the den or family room of the house, a contention which we will discuss more fully in part II of this opinion. Both sides also disagreed over the proper method to repair damaged floor joists.

The plaintiffs’ policy with Allstate provided that during the settlement of a claim, if the insured and Allstate ar e unable to agree on the amount of damages, either party may make a written demand for an appraisal. That process requires each party to name a “competent and disinterested” appraiser. The appraisers thereafter are to select an umpire and, in the event that the appraisers fail to agree on the amount of the loss, they are to submit their disagreements to the umpire. The amount of the loss is determined when at least two of those parties reach an agreement on the value of the loss. Biller Associates rejected Allstate’s initial offer and demanded that the claim be submitted to appraisal, naming Larry Biller, Biller Associates’ president, as its choice of appraiser on February 17, 1992.

On February 27,1992, Allstate rejected Larry Biller as appraiser on the ground that he was not disinterested. Allstate named Richard McKenna as its appraiser. Biller Associates rejected Allstate’s choice of McKenna on the ground that he was not disinterested. Finally, on September 4,1992, Jon Biller, attorney for the plaintiffs, named David Kronberg as the plaintiffs’ appraiser and accepted under protest Allstate’s appraiser, McKenna.

Even while the parties disagreed about each other’s choice of appraiser, they continued their efforts to settle the claim. By the end of April, 1992, Allstate and Biller Associates seemed to be nearing a resolution as both sides were significantly closer in their loss and repair estimates. On May 4, 1992, however, the appraiser handling the matter at Biller Associates, Larry Biller, was murdered. Another adjuster, Al Tancreti, took over the file and continued to negotiate with Allstate.

Any consensus was lost in the following months. In a letter dated June 10,1992, Allstate’s appraiser communicated to Biller Associates his understanding of the parties’ agreement on the scope of the fire damage, as well as aproposal that First General Services, Inc. (First General), a contractor, should perform the repair services on the plaintiffs’ property, per Allstate’s home repair guarantee set out in the plaintiffs’ policy. Subsequent correspondence between the parties reflected disagreements over each side’s choice of appraiser, the proper scope of the repairs and the estimates for repair. Complicating the matter, a July 31, 1992 rainstorm caused water damage to the property. This damage led the plaintiffs to submit another claim under their Allstate policy. Finally, in August, 1992, Allstate filed a motion to compel appraisal.

On February 24, 1993, an award on the fire loss was entered, and, on March 10, 1993, an award was entered on the water loss. Allstate has not paid the plaintiffs for the water loss, claiming that the plaintiffs failed to protect their property adequately following the fire, as their policy required.

In August, 1992, the plaintiffs filed a three count complaint against Allstate, alleging breach of contract, breach of the duty of good faith and fair dealing and unfair trade practices. The court granted Allstate’s motion to implead Biller Associates on February 14, 1994. Allstate subsequently filed a third party complaint against Biller Associates, alleging, inter aha, violations of CUTPA. The plaintiffs thereafter amended their complaint, adding claims against Biller Associates and Meyer Biller for breach of contract, negligence and violations of CUTPA, and a claim against Jon Biller for malpractice. The plaintiffs abandoned their claims against Allstate for breach of the duty of fair dealing and for violations of CUTPA. Biller Associates later filed a counterclaim against the plaintiffs for failure to pay a fee for services.

The court found for the plaintiffs on their breach of contract claim against Allstate and awarded the plaintiffs $22,328.42. The court also found for the plaintiffs on their breach of contract and negligence claims against Biller Associates and awarded damages of $1. The court found for the plaintiffs on their CUTPA claim against Biller Associates and awarded damages of $15,501.

The court found for the plaintiffs and against Biller Associates on Biller Associates’ counterclaim for the payment of fees. The court found for Biller Associates on Allstate’s CUTPA claim, the only surviving claim in Allstate’s third party complaint and the subject of this appeal.

General Statutes § 42-1 lOg (a) provides in relevant part that “[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages. ...”

General Statutes § 42-110b (a) provides that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” “[I]n determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W] he fli er the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [competitors or other businessmen] .... All three criteria do not need to be satisfied to support a finding of unfairness.” (Internal quotation marks omitted.) Thames River Recycling, Inc. v. Gallo, 50 Conn. App. 767, 785-86, 720 A.2d 242 (1998).

“A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three. . . . Moreover, [our Supreme Court] has set forth a three part test for satisfying the substantial injuiy criterion: [1] [the injury] must be substantial; [2] it must not be outweighed by any countervailing benefits to consumers or competition that the practice produces; and [3] it must be an injury that consumers themselves could not reasonably have avoided.” (Citation omitted; internal quotation marks omitted.) Hartford, Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 368, 736 A.2d 824 (1999).

I

Allstate first claims that the court was legally and logically required to render judgment in favor of Allstate on its CUTPA claim once it found that Biller Associates committed unfair and deceptive acts that caused an ascertainable loss for the plaintiffs in the form of an unreasonable delay in the resolution of the plaintiffs’ claim. We disagree.

Allstate challenges the different outcomes in the CUTPA claims against Biller Associates as an “internal inconsistency” in the court’s decision. Allstate argues that the court was bound by the applicable law and undisputed evidence to render judgment in its favor. Allstate maintains that it does not challenge the court’s underlying factual determinations concerning Biller Associates’ conduct. To the contrary, it argues that those determinations are correct and well supported by the evidence. To the extent that Allstate is challenging the trial court’s interpretation of CUTPA, our review is plenary. Id., 367. To the extent, however, that our analysis of this claim requires us to review the court’s factual findings, we will do so using a clearly erroneous standard. Id.

The following additional facts are relevant to this claim. The court found that Biller Associates breached the duty of good faith and fair dealing that it owed to the plaintiffs and committed professional negligence against the plaintiffs, thereby violating CUTPA, in the following three ways. First, Biller Associates improperly named one of its employees, on two separate occasions, to act as an appraiser after the employee previously had been active on the claim. Biller Associates also failed to withdraw promptly the nomination of those individuals when it should have done so. That conduct violated the terms of the plaintiffs’ policy with Allstate, which required that it appoint a disinterested appraiser. Second, Biller Associates misrepresented to Allstate that the plaintiffs insisted on a settlement of the claim for $40,000. Third, Biller Associates failed to convey to the plaintiffs Allstate’s offers to settle the claim. The court found credible Anthony Calandro’s testimony that Biller Associates did not notify him, as the plaintiffs’ contract with Biller Associates mandated, of Allstate’s June 10, 1992 offer to have First General repair the fire loss damage and that he would have welcomed that offer had Biller Associates conveyed it to him.

In its third party complaint against Biller Associates, Allstate alleged that “[i]f the plaintiffs were injured in the manner alleged in their claim against Allstate, then said injuries were proximately caused by the conduct of Biller Associates . . . .” The plaintiffs’ sole claim against Allstate was that it failed to comply with applicable policy provisions by failing to compensate the plaintiffs for the subsequent water damage to their property. Allstate further claimed that Biller Associates’ conduct caused the water damage to the plaintiffs’ property. Allstate alleged that Biller Associates improperly submitted a claim for damages and repairs to the plaintiffs’ property for losses that were not caused by the fire, failed to communicate to the plaintiffs Allstate’s offers of settlement and the terms of offers to compromise, failed to communicate accurately to the plaintiffs the terms and conditions of the plaintiffs’ policy and failed to take steps to protect the plaintiffs’ property from further damage following the fire despite its representation that it would do so. Allstate alleged that these unfair acts or practices violated CUTPA, caused the plaintiffs’ injuries and, as a result, caused Allstate an ascertainable loss.

The court found that Allstate failed to prove its allegations by a fair preponderance of the evidence and that “any injury suffered by Allstate was incidental to such unfair trade practices. Biller Associates’ unfair trade practices breached its duty to the [plaintiffs] as its clients. No such duty was owed Allstate.” The court further found that Biller Associates’ conduct did not cause Allstate an ascertainable loss. Although Allstate argued that its actual damages consisted of “ ‘fees and costs for lawyers, appraisers and [an] umpire resulting from the unnecessary appraisal proceedings and litigation related thereto,’ ” the court found that Allstate failed to prove those damages because it failed to prove that the appraisal proceedings and litigation were, in fact, unnecessary. The court’s finding is further supported by the fact that the amount ultimately awarded to the plaintiffs exceeded Allstate’s offers of settlement. The court further explained that, even if Allstate had demonstrated the existence of an ascertainable loss, it was persuaded that Biller Associates’ conduct would not satisfy the second prong of CUTPA’s “substantial injury” test.

Allstate claims, essentially, that the court’s findings concerning the plaintiffs’ CUTPA claim against Biller Associates legally and logically required that Allstate also succeed on its CUTPA claim against Biller Associates. Although Allstate argues that the different outcomes on the CUTPA claims against Biller Associates are inconsistent, the court made different factual determinations that underlie the outcomes concerning the plaintiffs and Allstate. We conclude that those findings are supported by the record, are not inconsistent and are not contrary to law.

In regard to the plaintiffs, the court found that Biller Associates violated CUTPA in three separate ways and that the plaintiffs had proven that they suffered a unique ascertainable loss as a result of that conduct. The court found that “such acts delayed resolution of the plaintiffs’ claim, caused additional expenditure by Anthony Calandro of time and effort in protecting the subject premises, caused the plaintiffs additional worry and aggravation, loss of the use of the damaged property, as well as loss of money in an undetermined amount.”

The court found very differently with respect to Allstate’s CUTPA allegations against Biller Associates. Of the three violations of CUTPA that the court attributed to Biller Associates, Allstate pleaded only one in its complaint against Biller Associates, namely, that Biller Associates failed to communicate promptly Allstate’s settlement offers to the plaintiffs. Although Allstate attempted to prove at trial that Biller Associates engaged in several acts of misrepresentation and concealment and tortiously interfered with the contract between Biller Associates and the plaintiffs, the court found that Allstate did not prove those allegations by a fair preponderance of the evidence.

The court further found that Biller Associates’ conduct did not cause Allstate any injury because Allstate failed to prove that its claimed fees and costs associated with the appraisal proceedings and litigation were, in fact, unnecessary or that, but for Biller Associates’ conduct, the plaintiffs’ losses would have settled without appraisal. Despite CUTPA’s broad remedial nature, “[t]he plain language of § 42-1 lOg (a) provides one limitation by requiring that the plaintiff suffer an ascertainable loss that was caused by the alleged unfair trade practice.” (Internal quotation marks omitted.) Reader v. Cassarino, 51 Conn. App. 292, 298-99, 721 A.2d 911 (1998). While our courts have applied that requirement liberally, a claimant must still prove by a preponderance of the evidence that it suffered an ascertainable loss of money or property as a result of a defendant’s actions. See Service Road Corp. v. Quinn, 241 Conn. 630, 639, 698 A.2d 258 (1997). We must affirm a court’s factual determination concerning whether a party suffered an ascertainable loss unless such a determination is clearly erroneous. Jacques All Trades Corp. v. Brown, 42 Conn. App. 124, 130, 679 A.2d 27 (1996), aff'd, 240 Conn. 654, 692 A.2d 809 (1997). We cannot say that the court’s findings in that regard are clearly erroneous and that the different outcomes occasioned by those findings are inconsistent as a matter of law.

Although the court need not have addressed the issue, it noted that even if Allstate had proved that it suffered an ascertainable loss, its claim still would fail because it could not satisfy the second prong of the substantial injury test. That prong permits the court to ascertain whether the claimed injury is “outweighed by any countervailing benefits to consumers or competition that the practice produces . . . .” (Internal quotation marks omitted.) Hartford Electric Supply Co. v. Allen-Bradley Co., supra, 250 Conn. 368. Allstate argues that the court incorrectly held that an insurer could not state a CUTPA claim against a public adjuster and that the court imposed a higher standard of proof on Allstate because it is an insurance company.

Rather than imposing a higher standard on Allstate, as Allstate suggests, the court noted that Allstate’s CUTPA claim against Biller Associates was “independent of the [plaintiffs’] CUTPA claim in that each complainant must establish substantial injury to prevail on its claim. Allstate failed to establish an ascertainable loss . . . and thus failed to establish that it was substantially injured by any actions of Biller Associates.” The court did not prevent Allstate from pursuing a CUTPA claim against Biller Associates because it was an insurance company. Instead, the court explained that permitting Allstate to prevail on its claim, given the facts of this case, would implicate public policy because it could affect the duty that public adjusters owe to their clients. The court found that the conduct at issue in this case concerning Biller Associates’ delay in reaching settlement was outweighed by the danger of pressuring public adjusters to settle claims on the insurer’s terms, rather than in the best interest of the insured. On appeal, although Allstate argues the public policy benefits of permitting insurance companies to “act as private attorneys general” in enforcing CUTPA against public adjusters, we need not address the merits of that argument, outside of noting that the court reasonably could have found as it did given the facts of this case.

We also need not address whether the court properly required either the plaintiffs or Allstate to prove a substantial injury. The court properly noted that Allstate’s burden of satisfying the “substantial injury” prong of the cigarette rule existed independently of the fact that the plaintiffs proved substantial injury. It is within the trier’s province to weigh the CUTPA factors as it sees fit. The law prescribes no precise formula by which the court should balance the criteria. The court, in this case, was free to consider whether the injury was substantial, after having found that Allstate’s case with regard to the other two criteria was not very strong.

The court’s findings regarding the plaintiffs’ claim are not inconsistent with its findings concerning Allstate’s claim. Although arising from the same conduct, the CUTPA claims brought by Allstate are distinguishable. A CUTPA analysis does not occur in a vacuum; it should be self-evident that the criteria in the analysis require the finder to examine the effect of the conduct in question, that is, the injury it occasioned. The court did not suggest that it interpreted CUTPA as prohibiting insurance companies from bringing claims against public adjusters and its conclusions were not contrary to law.

II

Allstate next claims that the court improperly determined that Biller Associates did not violate CUTPA when it submitted to Allstate a claim for damages to the plaintiffs’ property that it knew predated the com-pensable fire loss. We disagree.

“Whether a practice is unfair and thus violates CUTPA is an issue of fact.” (Internal quotation marks omitted.) Tarka v. Filipovic, 45 Conn. App. 46, 55, 694 A.2d 824, cert. denied, 242 Conn. 903, 697 A.2d 363 (1997), citing DeMotses v. Leonard Schwartz Nissan, Inc., 22 Conn. App. 464, 466, 578 A.2d 144 (1990). On appellate review, we overturn factual determinations only when they are clearly erroneous. Vezina v. Nautilus Pools, Inc., 27 Conn. App. 810, 820, 610 A.2d 1312 (1992).

The following additional facts are necessary to our resolution of this claim. In its third party complaint against Biller Associates, Allstate alleged that Biller Associates “made [a] claim on behalf of the plaintiffs for damages to the plaintiffs’ premises which were not caused by the fire which damaged the plaintiffs’ premises on November 18, 1991,” and that this conduct violated CUTPA and caused Allstate ascertainable loss.

The court found that Biller Associates’ initial estimate for damages to the plaintiffs’ property, in January, 1992, included $8135 for repairs to the den or family room, including the replacement of certain wall paneling. Anthony Calandro testified that that damage predated the 1'ire damage and that he informed Meyer Biller of that fact early on. Allstate disagreed that this damage was within the scope of the fire damage. By April 28, 1992, Larry Biller generated a replacement cost estimate, which replaced Meyer Biller’s estimate of $8135 for repairs to the family room, with an estimate of $295.05 for cleaning and painting repairs to the room. Biller Associates subsequently decreased its estimate for repairs to this part of the structure to $267.10.

The court further found that Biller Associates’ conduct in this regard did not give rise to a CUTPA violation by Biller Associates against Allstate. The court explained that it “simply was not persuaded that Biller Associates’ actions with regard to the preexisting damage constituted illegal, immoral or unscrupulous acts in violation of CUTPA. The court took into consideration the succession of individuals negotiating on behalf of Biller Associates and the confusion occasioned by the demise of Larry Biller. The court finds that Allstate failed to establish, by a fair preponderance of the evidence, that Biller Associates sought to include preexisting damage in claims for fire loss, so as to violate [CUTPA].”

More importantly, the court found that disagreements between Allstate and Biller Associates concerning the scope of the damage caused by the fire were “legitimate and legitimately disputed at least until the end of April, 1992, when . . . the scope of the damage to the family room appeared to be a nonissue, having been dropped from Biller Associates’ estimates.” That finding, therefore, weighed against Allstate’s claim that Biller Associates’ conduct caused it injury.

Allstate urges us nonetheless to hold that the court could only have concluded that Biller Associates’ conduct violated CUTPA. It argues that the court could not reasonably find that Biller Associates’ inclusion of the disputed living room damage in its original estimate resulted from confusion at Biller Associates. Allstate argues that it submitted evidence that attorney Jon Biller, in the course of representing the plaintiffs, included the cost of extensive repairs to the family room in a letter to Allstate dated July 9, 1992.

Allstate correctly points out that our law does not require it to prove that Biller Associates acted with an intent to deceive or with an illicit motive. See Kim v. Magnotta, 249 Conn. 94, 108, 733 A.2d 809 (1999); Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 43, 717 A.2d 77 (1998); Prishwalko v. Bob Thomas Ford, Inc., 33 Conn. App. 575, 583, 636 A.2d 1383 (1994).

On the basis of the evidence before it and given the unusual events that transpired during the settlement of the claim, the court could well have found that this conduct did not violate CUTPA. Not every misrepresentation constitutes a CUTPA violation, and the evidence permitted the court to find that the inclusion of that claim in Biller Associates’ estimate could have been an “instance of misrepresentation . . . due to the unique circumstances of this particular case as distinguished from unfair or deceptive acts or practices in the defendant’s trade or business.” Jacobs v. Healey Ford-Subaru, Inc., 231 Conn. 707, 729, 652 A.2d 496 (1995). It was within the court’s province to evaluate the evidence surrounding that issue, and we cannot say that its finding was clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       In their amended complaint, the plaintiffs also named Meyer Biller, a founder and principal of Biller Associates, as a defendant in this action. The court found that Meyer Biller acted at all times relevant to this action on behalf of Biller Associates and that any of his acts or omissions were attributable to Biller Associates. Allstate does not challenge that finding.
      Biller Associates is licensed by the state to perform public adjusting services. A public adjuster is “any person, partnership, association, limited liability company or corporation who or which practices as a business the adjusting of loss or damage by fire or other hazard under any policies of insurance in behalf of the insured under such policies, or who advertises or solicits business as a public adjuster, or holds himself out to the public as engaging in such adjusting as a business.” General Statutes § 38a-723.
      General Statutes § 38a-724 mandates the use of an employment contract between a public adjuster and a client. Biller Associates’ contract with the plaintiffs provided that Biller Associates could earn as much as 10 percent of the value of the loss that the plaintiffs recovered from Allstate.
      The plaintiffs also stated a claim against attorney Jon Biller, doing business as the Biller Law firm, who represented them in negotiations with Allstate, Attorney Biller, Meyer Biller’s son, was also counsel for Biller Associates. He shared office space and equipment with Biller Associates. Once Biller Associates became a party to the action, attorney Biller ceased to represent the plaintiffs. The court did not address the plaintiffs’ claim against attorney Biller, having stayed the action against him.

       Biller Associates' initial estimate was $68,742.84. Allstate’s estimate was $29,556.15 as a full replacement cost and $25,318.63 as an actual cash value cost.

         The court explained its finding as follows: “The expenditures claimed as damages are, in fact, routine costs of doing business. There was no showing that the plaintiffs’ motion to vacate the fire award was vexatious litigation. Allstate chose to file its motion to compel appraisal. If such action had the effect of pushing Biller Associates to withdraw its objection to [Allstate’s choice of appraiser], well and good, but Allstate failed to establish tha.1, but for Biller Associates’ unfair trade practices, the losses at issue would have settled without appraisal.”

       The court explained its reasoning as follows: “Unfair trade practices claims against public adjusters, such as Allstate asserts here, would, if sanctioned by the courts, encourage public adjusters to resolve claims in haste, even on terms unfavorable to their clients, and to avoid appraisal when such appraisal might, be in their clients’ best interests, lest the public adjuster find himself faced with a claim of unfair trade practices for refusal to settle a claim on the insurers’ terms. The harm to consumers in general would seem to outweigh any benefit to any insurer in a given case and would be contrary to public policy.”


author: LAVERY, C. J.

text:
    RONNIE FIELDS v. HOUSING AUTHORITY OF THE CITY OF STAMFORD
    (AC 19942)
    Lavery, G. J., and Dranginis and O’Connell, Js.

      Argued February 15
    officially released June 5, 2001

      William B. Westcott, for the appellant (plaintiff).

      Kevin M. Roche, with whom were John B. Farley, and, on the brief, Kathleen St. Onge, for the appellee (defendant).
   Opinion

LAVERY, C. J.

The plaintiff, Ronnie Fields, appeals from the summary judgment rendered in favor of the defendant, the housing authority of the city of Stamford (housing authority), for failure to give notice in accordance with General Statutes § 8-67. On appeal, the plaintiff claims that the trial court improperly granted the defendant’s motion for summary judgment on the basis of his noncompliance with the notice provisions of § 8-67. At issue is whether the defendant, which pleaded lack of notice under § 8-67 as a special defense, can prevail on a motion for summary judgment when the plaintiff, although he admitted that he had not complied literally with § 8-67, claims that notice to an employee of the defendant, and correspondence between the defendant’s insurer and the plaintiff within the statutory notice period fulfill the statute’s notice requirements. We affirm the judgment of the trial court.

The record discloses the following facts. The plaintiff alleged that on February 6, 1998, he slipped and fell on ice-covered steps on the defendant’s property. On the same day, the plaintiffs fiancee, Brenda Wilson, called Monique Moye at the housing authority to notify her of the date, time and location of the incident. Moye directed Wilson to contact Michelle Anrig Baldino, an employee at another housing authority office, and Wilson informed Baldino of the incident. The plaintiff met with Baldino three days later and showed her treatment records from Stamford Hospital that were allegedly related to injuries arising from the incident. The plaintiff, however, did not fill out an incident report, nor did he send notice to the defendant of his intention to commence an action as set forth in § 8-67. Nevertheless, Peter Ranalli of AIG Claim Services, Inc., the defendant's insurance carrier, contacted the plaintiff, acknowledged his claims and sought more information.

On April 27, 1998, the plaintiffs attorney informed the insurance carrier that he represented the plaintiff in the plaintiffs claim for damages resulting from the fall. In a letter dated July 20,1998, Ranalli acknowledged receipt of the letter of representation from the plaintiffs counsel. The plaintiff instituted an action in February, 1999. Thereafter, the defendant filed an answer asserting the special defense of noncompliance with § 8-67. Subsequently, the defendant filed a motion for summary judgment and submitted affidavits to the court, including one that stated that the housing authority had not received written notice of the plaintiffs intention to commence an action. The court rendered judgment in favor of the defendant after granting the motion on the ground that there was no dispute that the defendant had not received written notice as required under § 8-67. Additional facts and procedural history will be set forth as necessary.

The sole issue on appeal is whether the court improperly rendered a summary judgment in favor of the defendant on the ground that the plaintiff had failed to give the housing authority written notice of his intention to commence an action pursuant to § 8-67. “On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 693, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998). Because the court rendered judgment for the defendant as a matter of law, “our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995). “On appeal, however, the burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous.” 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn. App. 563, 567, 636 A.2d 1377 (1994).

The plaintiff claims that he conveyed notice of his intention to commence an action against the defendant in a manner that was sufficient to satisfy the requirements of § 8-67. Although the defendant admits that the plaintiff notified it of the incident, it claims that the notice was deficient for two reasons. First, the defendant claims that the plaintiff failed to notify the housing authority by proper written notice. Second, the defendant argues that actual notice does not address the purpose of the notice provision in § 8-67 because the language of the statute is unambiguous. We agree with the court’s conclusion that the plaintiff did not comply with the notice provision of the statute and that summary judgment, therefore, was properly rendered because there was no genuine issue of material fact regarding his noncompliance.

The plaintiff asserts two arguments to support his position. He first argues that compliance with the statute is not an essential element of the cause of action and, second, that actual notice is a valid exception to the notice requirement. In White v. Edmonds, 38 Conn. App. 175, 183, 659 A.2d 748 (1995), this court held that compliance with the notice provision of § 8-67 is not essential to a determination of liability, but concerns only whether the plaintiff has taken the proper steps to warrant recovery. As such, the notice provision of § 8-67 operates as a condition subsequent to liability rather than a condition precedent. Id., 183-84. A notice provision is a condition precedent when the statute containing the notice provision creates a new cause of action unrecognized by the common law. Id., 185. Section 8-67 did not create liability where none existed. Id. Rather, it provides procedural limitations on the ability to recover on a cause of action already available. Id. Indeed, “[a] written notice is not a condition precedent to the bringing of the action but is a limitation creating a condition subsequent.” Harris v. Housing Authority, 21 Conn. Sup. 132, 133, 146 A.2d 418 (1958). Compliance with the statute is a condition subsequent such that noncompliance, when specially pleaded, “concerns only whether the plaintiff has taken the proper steps to warrant recovery.” White v. Edmonds, supra, 183. Thus, because the defendant specially pleaded that the plaintiff had not complied with the statute, the plaintiff is barred from recovering.

The plaintiff also claims that the conversations with Baldino plus the correspondence from the insurance company constituted actual notice and that actual notice is sufficient to satisfy the statute. We disagree.

Our analysis of the plaintiffs claim is guided by well established principles of statutory construction. “Our fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Gonsalves v. West Haven, 232 Conn. 17, 21, 653 A.2d 156 (1995). Here, the plaintiff claims that the court, in granting the motion for summary judgment, improperly construed the statute narrowly and strictly.

Because the plaintiffs notice did not comply with the requirements of § 8-67, there was no genuine issue of material fact, and summary judgment in the defendant’s favor was warranted as a matter of law. The legislative history of § 8-67 is instructive. The notice statute originally was enacted to bring notice obligations for housing authorities in line with those for municipalities generally. 6 S. Proc., Pt. 4, 1955 Sess., pp. 1044-45. The statute then was repealed in 1959, eliminating the need for any notice to be given and putting housing authorities on equal footing with private landlords. 8 H.R. Proc, Pt. 10, 1959 Sess, pp. 4080-81. It is apparent from the discussions surrounding the repeal of the statute that numerous claimants had failed to comply with the statute, resulting in the claimants inundating the legislature with requests for validating acts.

The statute was reenacted, however, in 1983, with the intent of reestablishing a statutory limitation period and requiring written notice of the claimant’s intent to bring an action and of the time and place of the injuries. The notice was to be provided to the chairman or secretary of the housing authority because, in the absence of notice, housing authorities were frequently unaware of claims until months or years after the injuries had occurred. 26 H.R. Proc., Pt. 24, 1983 Sess., p. 8304. They were thus not able to investigate the matter or to put their insurers on notice in a timely way.

The legislature is presumed to be aware of the judicial construction of relevant legislation. Nationwide Ins. Co. v. Gode, 187 Conn. 386, 395 n.7, 446 A.2d 1059 (1982), overruled in part on other grounds, Covenant Ins. Co. v. Coon, 220 Conn. 30, 36 n.6, 594 A.2d 977 (1991). Thus, the legislature was aware from the prior judicial decisions that persons could be injured on housing authority property and be denied recovery for failing to provide the statutory notice. The plaintiffs position would make the notice provision meaningless if somehow an employee of the insurance carrier is put on notice of a suit.

We hold that just as a municipal employee cannot waive notice on behalf of the municipality; Nicholaus v. Bridgeport, 117 Conn. 398, 401-402, 167 A. 826 (1933); neither can an employee of a housing authority or its insurance carrier waive the notification to the housing authority that is required by § 8-67.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 8-67 provides: “Any person injured in person or property within boundaries of property owned or controlled by an authority, for which injury such authority is or may be liable, may bring an action within two years after the cause of action therefor arose to recover damages from such authority, provided written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the chairman or the secretary of the authority within six months after the cause of action therefor arose.”

       Under General Statutes § 8-41 (a), the executive director is the secretary of the housing authority.

       Moreover, the plaintiff does not dispute that he did not comply with the statute.

       “[T]his bill concerns itself with the notification to local housing authorities to be given by any one injured, to self or property, within the jurisdiction of the housing authorities. It stipulates that notice should be given within 60 days after the injury or within ten days if the injury is due to snow or ice. This brings legislation in line with the same type of notice required be given to municipalities.” 6 S. Proc., supra, pp. 1044-45, remarks of Senator Arthur H. Healey.

       “[A housing authority] should be in the same category as a private landlord.” 8 H.R. Proc., supra, p. 4083, remarks of Representative Raymond C. Lyddy.

       “[PJeople don’t know of the requirements and they have to come in here for all sorts of validating acts. This we feel would do away with the necessity for these validating acts.” 8 H.R. Proc, supra, p. 4083, remarks of Representative Raymond C. Lyddy.

       “This bill would require any damage suit against the Housing Authority to be brought within two years after the event which gave rise to it. It would also require the written notice of intent to bring action, and of the time and place where damages were incurred or sustained, be filed with the Chairman of the Secretary of the Authority within six months after the cause.” 26 H.R. Proc, supra, p. 8304, remarks of Representative Paul J. Garavel.

       We also note that in the context of our Workers’ Compensation Act, General Statutes § 31-275 et seq., this court has held that “notice to the insurance company, which had no right of action to protect, was held to be insufficient under” General Statutes § 31-293 (a). Reichert v. Sheridan, 34 Conn. App. 521, 525-26, 642 A.2d 51 (1994), aff'd, 233 Conn. 251, 658 A.2d 96 (1995).


author: O’CONNELL, J.

text:
    CITY OF BRIDGEPORT v. 2284 CORPORATION, INC.
    (AC 20158)
    Dranginis, Flynn and O’Connell, Js.

      Argued February 28
    officially released June 5, 2001

      Alexander H. Schwartz, for the appellant (defendant).

      Russell D. Liskov, associate city attorney, for the appellee (plaintiff).
   Opinion

O’CONNELL, J.

This is a summary process action in which the defendant appeals from the judgment of possession against it. The dispositive issue is whether the defendant should have been a defendant in the tax lien foreclosure action by which the plaintiff, the city of Bridgeport (city), acquired title. We affirm the judgment of the trial court.

The following relevant facts are taken from a stipulation of the parties. In 1993, the defendant entered into a written lease and took possession as a tenant of 2288 and 2294 Fairfield Avenue in Bridgeport. The lease was not witnessed, notarized or recorded. In 1994, the city foreclosed tax liens on the property in an action in which the defendant was not named as an encum-brancer. The court rendered a judgment of strict foreclosure, and title vested in the city on October 15,1998.

After obtaining title, the city commenced this summary process action against the defendant on the ground, inter alia, that the defendant had no right to possession of the property. By way of special defense, the defendant pleaded to the effect that the foreclosure judgment was not effective against it because it had not been made a party and, consequently, was not served with process in the foreclosure proceeding.

The defendant argues that although its lease was not recorded on the land records, it was nevertheless entitled to be named as a defendant and given a law day. This argument ignores Practice Book § 10-69, which requires that “ [a]ll encumbrances of record” be set forth in the complaint. (Emphasis added.) We are not aware of any authority, nor has any been brought to our attention, that mandates naming unrecorded encumbrances in a foreclosure complaint. While the city had the option of naming the defendant as a party in the foreclosure and then proceeding to obtain possession by way of ejectment, it was not required to follow that course. Instead, it could elect not to name the defendant, and then to proceed, as it did, to obtain possession by way of summary process. Federal Home Loan Mortgage Corp. v. Van Sickle, 52 Conn. App. 37, 42, 726 A.2d 600 (1999); D. Caron, Connecticut Foreclosures (3d Ed. 1997) pp. 244-45.

We decline to establish a rule that would require foreclosing plaintiffs to include all tenants as defendants in foreclosure actions. The ramifications of such a rule would be far reaching. For instance, it would impose a duty on foreclosing plaintiffs to conduct an investigation to learn who was occupying portions of the premises under unrecorded and perhaps unwritten leases. Because there is no privity between a foreclosing plaintiff and a defendant’s tenants, we dare not predict the extent of cooperation and the accuracy of the information that such an investigation would produce. We hold that if a tenant’s lease is not recorded, the tenant has no right to be part of the foreclosure action and, more specifically, is not entitled to a law day.

The defendant contends that General Statutes § 49-30 supports its position. We do not agree. Section 49-30 establishes a procedure for foreclosing an encumbrance that is omitted in the original foreclosure. As used in § 49-30, the term encumbrance refers to recorded encumbrances. We are aware of no case law that suggests otherwise. Moreover, the tenor of § 49-30 makes it clear that it was intended to benefit the foreclosing party who, through mistake or oversight, omitted an encumbrance. It is not intended to be used as a sword by the omitted party.

The defendant’s reliance on Federal Deposit Ins. Corp. v. Bombero, 37 Conn. App. 764, 769, 657 A.2d 668 (1995) , appeal dismissed, 236 Conn. 744, 674 A.2d 1324 (1996) , is misplaced. In Bombero, we held that “[t]he purpose of § 49-30 is to provide for a cure in the event that a party is omitted from foreclosure proceedings. This purpose is unambiguously apparent from the statutory language and its delineation of the methods of curing the omission by deed or foreclosure or other legal proceedings.” (Emphasis added; internal quotation marks omitted.) Id. The fallacy in the defendant’s reasoning is that it assumes that the defendant is a party that holds an encumbrance on the property. As we concluded earlier in this opinion, the defendant’s unrecorded lease does not constitute an encumbrance and, thus, there is no omission that needs curing.

On the basis of the foregoing, we conclude that the defendant was not required to be made a party in the foreclosure action, and the city’s foreclosure of its tax hens extinguished the defendant’s lease. See Federal Home Loan Mortgage Corp. v. Van Sickle, supra, 52 Conn. App. 41-42.

II

Even if the defendant could persuade us that foreclosure procedure entitled it to a law day, it cannot survive General Statutes § 47-19, which provides that a lease for more than one year will be ineffectual against anyone other than the lessor and lessee “unless it is in writing, executed, attested, acknowledged and recorded in the same manner as a deed of land . . . .” The lease in the present case was not witnessed, acknowledged or recorded.

The defendant argues that because the city knew or should have known of its lease, § 47-19 does not apply and that under some circumstances an unrecorded lease has been held to bind a third party who had actual notice of the existence of the lease. See Drazen Properties Ltd. Partnership v. E. F. Mahon, Inc., 19 Conn. App. 471, 562 A.2d 1142 (1989). There are two fallacies to this argument as applied here. First, the cases on which the defendant relies concern bona fide purchasers for value. See id., 477. A bona fide purchaser is a buyer who pays full and fair price for property without notice that another person has an interest in that property. Id. A city that forecloses a tax lien does not meet that definition. Second, the defendant does not cite authority as to who, when dealing with a city, the public official is who would be charged with notice of the lease. Would it be the tax collector, the assessor, the city attorney, any individual councilman, the entire city council or some other municipal functionary?

We conclude that the defendant’s unrecorded and defectively executed lease gave it no rights in the foreclosure.

The judgment is affirmed.

In this opinion the other judges concurred.

       In its brief, the defendant states the issues as follows: (1) “Since 2284 Corporation was not a defendant in the city’s tax foreclosure action, its lease was not extinguished by the judgment in that action”; (2) “since 2284 Corporation had a property interest in its lease and was not a party to the city’s foreclosure action, its lease survived strict foreclosure”; (3) “since the city had or should have had notice of the defendant’s lease at the time it took title to the premises, it is bound by that actual or constructive knowledge and cannot therefore avoid the corporation’s unrecorded lease”; and (4) because the city did not have legal title to the premises when the defendant received its lease, 2284 Corporation did not take possession subject to the city’s interest when it took possession. Therefore its lease survived strict foreclosure.”

       In an attempt to name the defendant as a party during the foreclosure proceeding, the city moved to name Louis Pagliuco as a defendant, claiming that he individually had an interest in the property that would be affected by a judgment. Louis M. Pagliuco was a shareholder, officer and director of the defendant corporation, but the notice was served on a Louis R. Pagliuco, who had no interest in the corporation. In view of our analysis, this ineffective attempt to serve Pagliuco as a defendant is irrelevant.

       Practice Book § 10-69 provides in relevant part: “The complaint in all actions seeking the foreclosure of a mortgage or other lien upon real estate shall set forth, in addition to the other essentials of such complaint: All encumbrances of record upon the property both prior and subsequent to the encumbrance sought to be foreclosed . . . .” (Emphasis added.)

       Query as to whether ait unrecorded lease is even an encumbrance. In Palmeri v. Allen, 30 Conn. Sup. 56, 59, 299 A.2d 552 (1972), the Superior Court held that a recorded agreement did not constitute an encumbrance but constituted only a cloud on the title because it was not executed in accordance with the statute relating to conveyances of interest in real estate.

       General Statutes § 49-30 provides: “Omission of Parties in Foreclosure Actions. When a mortgage or lien on real estate has been foreclosed and one or more parties owning any interest in or holding an encumbrance on such real estate subsequent or subordinate to such mortgage or lien has been omitted or has not been foreclosed of such interest or encumbrance because of improper service of process or for any other reason, all other parties foreclosed by the foreclosure judgment shall be bound thereby as fully as if no such omission or defect had occurred and shall not retain any equity or right to redeem such foreclosed real estate. Such omission or failure to properly foreclose such party or parties may be completely cured and cleared by deed or foreclosure or other proper legal proceedings to which the only necessary parties shall be the party acquiring such foreclosure title, or his successor in title, and the party or parties thus not foreclosed, or their respective successors in title.”

       General Statutes § 47-19 provides in relevant part: “No lease of any building, land or tenement . . . for any term exceeding one year or which provides for the renewal thereof or an option to purchase such . . . tenement, shall be effectual against any persons other than the lessor and lessee and their respective heirs, successors, administrators and executors, unless it is in writing, executed, attested, acknowledged and recorded in the same manner as a deed of land . . . .” (Emphasis added.)


text:
    CHRISTOPHER CHAPPELL v. MANAFORT BROTHERS, INC., ET AL.
    (AC 20701)
    Schaller, Mihalakos and O’Connell, Js.
    Argued March 23
    officially released June 5, 2001

      Robert M. Fitzgerald, for the appellant (plaintiff).

      Nancy S. Rosenbaum, with whom, on the brief, was Gregory C. Goodstein, for the appellees (defendants).
   Opinion

MIHALAKOS, J.

The plaintiff, Christopher Chappell, appeals from the decision of the workers’ compensation review board (board) upholding the finding and award of the trial commissioner (commissioner). On appeal, the plaintiff claims that the board improperly affirmed the commissioner’s finding that he was owed only specific indemnity benefits for an 11 percent impairment of his right knee because there was no evidence that compensation was paid or payable to him with regard to a previous disability to that same knee. We affirm the decision of the board.

The following facts and procedural history are necessary to our resolution of this appeal. The plaintiff injured his right knee in a motor vehicle accident in January, 1989, and subsequently commenced an action and insurance claim to recover for his injuries. He underwent two surgeries on his right knee, including reconstruction and repair of his anterior cruciate ligament. The plaintiffs treating physician, Joseph Zeppieri, assigned a permanent, partial disability rating of 15 percent to the plaintiffs right knee as a result of the 1989 accident. The plaintiff received $100,000 in settlement as a result of his legal action. At the time of the settlement, evidence was submitted showing that Zeppieri had assigned a 15 percent permanent, partial disability rating to the plaintiffs right knee as a result of the accident.

On October 20, 1997, the plaintiff reinjured his right knee while in the employ of the defendant Manafort Brothers, Inc. Zeppieri performed surgery for the injury. Zeppieii assigned the plaintiff a permanent, partial disability rating of 32 percent for his right leg at or above the knee, and divided that as 15 percent preexisting disability and 17 percent disability related to the work-related injury. The defendants’ physician, Robert Fisher, an orthopedist, also examined the plaintiff. Fisher assigned the plaintiff a permanent, partial disability rating of 20 percent for his right knee — 12.5 percent preexisting disability and 7.5 percent disability related to the October 20, 1997 injury. The parties entered into a stipulation and arrived at a compromised total rating of 26 percent from both incidents for the plaintiffs lower right leg injury.

In a finding and award dated April 9, 1999, the commissioner ruled that 15 percent of the plaintiffs entire disability to his right knee was due to the January, 1989, injury and that the plaintiff had been compensated for that disability as part of his $100,000 personal injury recovery. The commissioner, thereafter, deducted 15 percent from the plaintiffs entitlement in the case before this court and held that the defendants were responsible for compensating the plaintiff for the additional 11 percent permanent, partial disability to his lower right leg that resulted from the October 20, 1997 injury.

The plaintiff petitioned the board for review. The board affirmed the decision of the commissioner, stating that it was reasonable for the trier of fact to have inferred from the items in evidence that the plaintiff either received or could have received compensation as part of his recovery for his permanent knee impairment.

The plaintiff first claims that the board improperly affirmed the commissioner’s finding that he was owed specific indemnity benefits only for an 11 percent impairment of his right knee because there was no evidence that compensation was paid or payable to him with regard to a previous disability resulting from a prior motor vehicle accident. We disagree.

“The standard applicable to the board when reviewing a commissioner’s decision is well established. The board sits as an appellate tribunal reviewing the decision of the commissioner. . . . [T]he review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [T]he power and duty of determining the facts rests on the commissioner .... The commissioner may base his or her findings on circumstantial evidence .... Where the subordinate facts allow for diverse inferences, the commissioner’s selection of the inference to be drawn must stand unless it is based on an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Citations omitted; internal quotation marks omitted.) Paternostro v. Arborio Corp., 56 Conn. App. 215, 218-19, 742 A.2d 409 (1999), cert. denied, 252 Conn. 928, 746 A.2d 788 (2000).

“This court’s review of decisions of the board is similarly limited. . . . The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . [W]e must interpret [the commissioner’s finding] with the goal of sustaining that conclusion in light of all of the other supporting evidence. . . . Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it.” (Citations omitted; internal quotation marks omitted.) Id., 219.

“The legislative history and genealogy of [Public Acts 1979, No. 79-376 (P.A. 79-376)] indicate that the phrase less any compensation benefits payable or paid with respect to the previous disability was intended to prevent claimants who previously had been awarded partial permanent compensation benefits pursuant to General Statutes §§ 31-308 (b), 31-309 and 31-295 (c) for a first work-related injury from recovering duplica-tive compensation for that first injury pursuant to § 31-349. . . . [I]n 1993, pursuant to Public Acts 1993, No. 93-228, § 24 . . . the legislature amended General Statutes (Rev. to 1993) § 31-349 to provide that the phrase compensation payable or paid with respect to the previous disability includes compensation payable or paid pursuant to the provisions of this chapter, as well as any other compensation payable or paid in connection with the previous disability, regardless of the source of such compensation. . . . [Public Act] 79-376 was intended to limit the liability of both the second employer and the fund by requiring that, in calculating the amount of benefits due the claimant for the claimant’s second injury, a deduction be taken for any compensation benefits that the claimant already is entitled to recover for his first injury . . . .” (Citations omitted; internal quotation marks omitted.) Fimiani v. Star Gallo Distributors, Inc., 248 Conn. 635, 648-50, 729 A.2d 212 (1999).

The plaintiff is correct in his assertion that §§ 31-308 (b) and 31-349 provide for reduction in the amount of benefits owed when the defendants establish that he has a previous disability for which compensation is paid or payable. The plaintiff, however, incorrectly asserts that he does not have a previous disability for which compensation is paid or payable. The plaintiff himself stipulated to the existence of his previous permanent, partial disability stemming from the motor vehicle accident. At the time of the $100,000 settlement for his 1989 knee injury, the plaintiff submitted evidence of his 15 percent disability rating. That rating formed at least part of the basis for the settlement. Therefore, not only did the plaintiff suffer an injury for which compensation was payable, but compensation was actually paid to him.

The plaintiff further errs in interpreting § 31-349 as requiring affirmative proof that actual, specific benefits have been paid to him as compensation for his previous disability. Section 31-349 precludes the plaintiff from receiving compensation for his 1989 injury as part of his 1999 compensation. Following the 1997 job related reinjury of the plaintiffs right knee, the plaintiff and the defendants entered into a stipulation assigning the plaintiffs right knee a total permanent, partial disability rating of 26 percent. The commissioner found that 15 percent of the plaintiff’s entire disability to the right knee was due to the 1989 injury and, because the plaintiff had been compensated for that disability as part of the $100,000 settlement, the defendants were responsible for compensating him for the remaining 11 percent.

The commissioner’s ruling was supported by ample evidence in the record, and it correctly applied § 31-349 (a). The board properly upheld that decision, stating that it was reasonable for the trier of fact to infer from the items in evidence that the plaintiff, as part of his $100,000 recovery, had either received or could have received compensation for the permanent, partial disability to his right knee.

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

In this opinion the other judges concurred.

       Liberty Mutual Insurance Company also is a defendant. It is the insurer of the defendant Manafort Brothers, Inc.

       Although the actual stipulation of the parties is not contained in the record before us, both parties, in their briefs, have referred to a stipulation that is consistent with the finding of the commissioner that “[t]he parties agreed that whatever the outcome of this hearing, the [plaintiff] has a total of twenty-six (26%) percent permanent partial disability as a result of both injuries.”

       General Statutes § 31-308 (b) provides in relevant part: “With respect to the following injuries, the compensation, in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation, shall be seventy-five per cent of the average weekly earnings of the injured employee, calculated pursuant to section 31-310 . . . but in no case more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309, or less than fifty dollars weekly. . . .”

       General Statutes § 31-309 (a) provides: “Except as provided in section 31-307, the weekly compensation received by an injured employee under the provisions of this chapter shall in no case be more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of all workers of the state as hereinafter defined for the year in which the injury occurred except that the weekly compensation received by an injured employee whose injury occurred before July 1, 1993, shall be computed according to the provisions of law in effect at the time of his injury. In the case of an occupational disease, the time of injury shall be the date of total or partial incapacity to work as a result of such disease.”

       General Statutes § 31-295 (c) provides in relevant part: “If the employee is entitled to receive compensation for permanent disability to an injured member in accordance with the provisions of subsection (b) of section 31-308, the compensation shall be paid to him beginning not later than thirty days following the date of the maximum improvement of the member or members and, if the compensation payments are not so paid, the employer shall, in addition to the compensation rate, pay interest at the rate of ten per cent per annum or such sum or sums from the date of maximum improvement. The employer shall ascertain at least monthly whether employees are entitled to compensation because of a loss of wages as a result of the injury and, if there is a loss of wages, shall pay the compensation. . . .”

       General Statutes § 31-349 (a) provides: “The fact that an employee has suffered a previous disability, shall not preclude him from compensation for a second injury, nor preclude compensation for death resulting from the second injury. If an employee having a previous disability incurs a second disability from a second injury resulting in a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the disability that would have resulted from the second injury alone, he shall receive compensation for (1) the entire amount of disability, including total disability, less any compensation payable or paid with respect to the previous disability, and (2) necessary medical care, as provided in this chapter, notwithstanding the fact that part of the disability was due to a previous disability. For purposes of this subsection, ‘compensation payable or paid with respect to the previous disability’ includes compensation payable or paid pursuant to the provisions of this chapter, as well as any other compensation payable or paid in connection with the previous disability, regardless of the source of such compensation.”