source: Caselaw Access Project

author: BORDEN, J. MCDONALD, J.,

license: Public Domain

text:
    HLO LAND OWNERSHIP ASSOCIATES LIMITED PARTNERSHIP v. CITY OF HARTFORD
    (SC 15896)
    Callahan, C. J., and Borden, Berdon, Norcott and McDonald, Js.
    Argued November 5, 1998
    officially released April 6, 1999

      Wesley W. Horton, with whom were Arnold Sbarge and Allison A. Wood, legal intern, for the appellant (plaintiff).

      Micho,el C. Collins, deputy corporation counsel, with whom, on the brief, was Kevin G. Dubay, corporation counsel, for the appellee (defendant).
   Opinion

BORDEN, J.

The plaintiff, HLO Land Ownership Associates Limited Partnership, appeals from the judgment of the trial court dismissing its tax appeal regarding the valuation of its property by the defendant, the city of Hartford, on the grand lists of October 1, 1995, and October 1, 1996. The plaintiff claims that the trial court improperly: (1) excluded parol evidence regarding a certain prior stipulated judgment between the parties; and (2) interpreted that stipulated judgment. We affirm the judgment of the trial court.

The plaintiff brought this action against the defendant pursuant to General Statutes § 12-117a, claiming that the valuation of its property for tax purposes in 1995 and 1996 was “grossly excessive, disproportionate and illegal . . . .” The defendant filed a special defense asserting that “[t]he complaint is barred by the doctrines of res judicata and collateral estoppel. The issue sought to be put before the court was previously decided in the tax appeal case captioned [HLO Land Ownership Associates Ltd. Partnership v. Hartford, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 90-0379794-S (March 31, 1993)].” The trial court, in effect, sustained this special defense and rendered judgment for the defendant. This appeal followed.

The following facts are not in dispute. On October 1, 1989, the defendant valued the subject property as four separate parcels of land: 10-52 Ford Street, $21,148,000; 355 Asylum Street, $6,614,600; 377 Asylum Street, $1,003,900; and 361 Asylum Street, $623,800, for a total valuation of $29,390,300. As of that date, the plaintiff was operating a Hilton Hotel on the property. On December 31, 1989, however, the plaintiff chose to cease operations of the hotel, and on October 28, 1990, at the direction of the plaintiff, the hotel building was imploded. Since August 1, 1992, the vacant land has been used as a surface parking lot.

The plaintiff appealed to the defendant’s board of tax review seeking a reduction in the October 1, 1989 valuation. The board refused to lower the valuation, and on June 22, 1990, the plaintiff appealed from the board’s decision to the Superior Court. On March 31, 1993, the parties filed a motion for a stipulated judgment, and judgment was rendered accordingly.

In the stipulated judgment, the parties agreed that “[t]he true and actual value of [the] plaintiffs properties on the assessment date of October 1, 1989 shall be reduced, in the aggregate, to $17,395,200, allocated as follows: 10-52 Ford Street, $9,872,640; 355 Asylum Street, $5,969,280; 377 Asylum Street, $958,080; 361 Asylum Street, $595,200.” According to the provision specifically at issue in this appeal, these values were to be effective “commencing with October 1, 1990, and continuing up to but not including the assessment date on which the next city-wide revaluation of real property takes effect, which the parties expect to occur effective with the grand list of October 1, 1994 . . . .’’(Emphasis added.)

At the time the parties entered into the stipulation, General Statutes (Rev. to 1993) § 12-62 (f) required the defendant to conduct a revaluation every five years. In June, 1994, however, the General Assembly enacted Public Acts, Spec. Sess., May, 1994, No. 94-4, § 51, codified as General Statutes (Rev. to 1995) § 12-62h, which permitted municipalities who were scheduled to conduct a revaluation in 1994 to postpone their revaluation until 1996. In early 1995, the General Assembly amended that statute by enacting Public Acts 1995, No. 95-283, § 8, which permitted municipalities to postpone revaluation for a period not to exceed three years. As a result of these acts, the defendant did not conduct a citywide revaluation on October 1, 1994, and is now required to conduct its next revaluation on October 1, 1999.

The plaintiff first claims that the trial court improperly excluded parol evidence it had offered to explain the phrase, “which the parties expect to occur effective with the grand list of October 1,1994,” in the stipulated judgment of March 31, 1993. The plaintiff claimed that the phrase is ambiguous and, therefore, parol evidence was admissible to explain its meaning. Although we agree with the plaintiff that the phrase is ambiguous enough to surmount that initial impediment to the rule against the admission of parol evidence, we conclude that the trial court’s ruling was correct nonetheless because the proffered evidence would have exceeded the proper scope of parol evidence. We therefore affirm the trial court’s ruling on grounds different from that on which that court had relied.

The plaintiff offered the parol testimony of Richard Steele, who was employed as a senior vice president of administration for DT Chase Enterprises, Inc., at the time that the stipulated judgment had been entered into, to explain what the plaintiff intended by its use of the phrase in the stipulated judgment. The trial court ultimately excluded the evidence, ruling that the phrase was not ambiguous.

Our analysis is guided by the well established principle that “[a] judgment rendered in accordance with ... a stipulation of the parties is to be regarded and construed as a contract. Barnard v. Barnard, 214 Conn. 99, 109, 570 A.2d 690 (1990). Thus, our resolution of the plaintiffs claim is guided by the principles that govern the construction of contracts.” (Internal quotation marks omitted.) Tremaine v. Tremaine, 235 Conn. 45, 56-57, 663 A.2d 387 (1995).

“A contract is to be construed as a whole and all relevant provisions will be considered together. . . . In giving meaning to the terms of a contract, we have said that a contract must be construed to effectuate the intent of the contracting parties. . . . The intention of the parties to a contract is to be determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. ... In interpreting contract items, we have repeatedly stated that the intent of the parties is to be ascertained by a fair and reasonable construction of the written words and that the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... [Barnard, v. Barnard, supra, 214 Conn. 109-10], Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms. . . . Levine v. Massey, 232 Conn. 272, 279, 654 A.2d 737 (1995). Absent a statutory warranty or definitive contract language, the trial court’s interpretation of a contract, being a determination of the parties’ intent, is a question of fact that is subject to reversal on appeal only if it is clearly erroneous. Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 199, 520 A.2d 208 (1987).” (Internal quotation marks omitted.) Tremaine v. Tremaine, supra, 235 Conn. 57.

Moreover, “[a]s we have so often noted, the parol evidence rule is not a rule of evidence, but a substantive rule of contract law. Security Equities v. Giamba, 210 Conn. 71, 77-78, 553 A.2d 1135 (1989); Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981); Cohn v. Dunn, 111 Conn. 342, 346, 149 A. 851 (1930); see also 2 Restatement (Second), Contracts § 213, comment (a) [1981]; 3 A. Corbin, [Contracts (I960)] § 573; 4 S. Williston, [Contracts (3d Ed. 1961)] § 631. The rule is premised upon the idea that when the parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed, that the whole engagement of the parties, and the extent and manner of their understanding, was reduced to writing. After this, to permit oral testimony, or prior or contemporaneous conversations, or circumstances, or usages [etc.], in order to learn what was intended, or to contradict what is written, would be dangerous and unjust in the extreme. Glendale Woolen Co. v. The Protection Ins. Co., 21 Conn. 19, 37 (1851).” (Internal quotation marks omitted.) Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 779-80, 653 A.2d 122 (1995).

“The parol evidence rule does not of itself, therefore, forbid the presentation of parol evidence, that is, evidence outside the four comers of the contract concerning matters governed by an integrated contract, but forbids only the use of such evidence to vary or contradict the terms of such a contract. Parol evidence offered solely to vary or contradict the written terms of an integrated contract is, therefore, legally irrelevant. When offered for that purpose, it is inadmissible not because it is parol evidence, but because it is irrelevant. By implication, such evidence may still be admissible if relevant (1) to explain an ambiguity appearing in the instrument; (2) to prove a collateral oral agreement which does not vary the terms of the writing; (3) to add a missing term in a writing which indicates on its face that it does not set forth the complete agreement; or (4) to show mistake or fraud. Jay Realty, Inc. v. Ahearn Development Corporation, 189 Conn. 52, 56, 453 A.2d 771 (1983). These recognized exceptions are, of course, only examples of situations where the evidence (1) does not vary or contradict the contract’s terms, or (2) may be considered because the contract has been shown not to be integrated; or (3) tends to show that the contract should be defeated or altered on the equitable ground that relief can be had against any deed or contract in writing founded in mistake or fraud. Noble v. Comstock, 3 Conn. 295, 299 (1820); see also Dale v. Gear, 38 Conn. 15, 18-19 (1871) (agency, trust, equitable relation or equity may be shown by parol evidence). TIE Communications, Inc. v. Kopp, 218 Conn. 281, 288-89, 589 A.2d 329 (1991).” (Internal quotation marks omitted.) Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, supra, 231 Conn. 780-81.

The plaintiff has not disputed, either in this court or in the trial court, that this stipulated agreement was the type of contract to which the parol evidence rule applies, namely, a contract that purports to embody the entire agreement of the parties. See Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 273, 439 A.2d 314 (1981) (parol evidence rule applies to integrated agreement). Nor does the plaintiff argue before this court that the contract should be rescinded because it was based upon mutual mistake. The proffered testimony should have been admitted, therefore, only if the contract language was ambiguous and the testimony would not vary or contradict the terms of the contract.

We agree with the plaintiff that the phrase “which the parties expect to occur,” is ambiguous. Precisely what effect, if any, the parties intended it to have, cannot be gleaned definitively solely from the contractual language. The parol evidence offered, however, would have gone beyond explaining the meaning of the phrase at issue. It would have tended to show, instead, that the contract should be rescinded because it was entered into on the basis of a mistake. The plaintiff expressly argues that had the court “considered the plaintiffs proffered evidence . . . the trial court would likely have found persuasive the uncontroverted testimony that a revaluation in 1994 was crucial to the plaintiffs willingness to settle . . . .’’In other words, the only reasonable inference that can be drawn from Steele’s testimony is that if the revaluation were not to occur on the date that the parties expected, the plaintiff would not have entered into the stipulation. This does not constitute the explanation of an ambiguous phrase. It is, instead, part of the necessary proof of a claim of mutual mistake leading to rescission of the contract, namely, that the plaintiff was under the mistaken impression that a revaluation would necessarily take place in 1994, and on the basis of that mistake, it entered into the stipulation. The plaintiff, however, specifically has disavowed in this court any claim of rescission on the basis of mutual mistake. See footnote 10 of this opinion. Thus, the parol evidence was not admissible because it would have varied or contradicted the contract. Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, supra, 231 Conn. 780.

The plaintiffs alternate claim is that, even if the contract language is clear and unambiguous on its face, the language has only one meaning as a matter of law, namely, that the defendant was obligated to employ its “best efforts” to bring about a 1994 revaluation. We already have determined, however, that the language is ambiguous. Moreover, our thorough examination of the complaint, the trial court briefs, the transcript of the argument before the trial court, and the trial court’s memorandum of decision, provides no indication that this claim was presented to the trial court. Practice Book § 60-5 provides in pertinent part that “[t]he 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.” We have held, moreover, that “[wjhere a trial court’s action does not result in any manifest injustice, a defendant’s claim under the plain error doctrine does not warrant review. . . . Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Domian, 235 Conn. 679, 692, 668 A.2d 1333 (1996). The plaintiff has not asserted, nor engaged in any analysis, to support a reversal of the trial court judgment on the basis of plain error, and we do not perceive any such basis. Furthermore, we ordinarily decide appeals on the basis on which they were litigated in the trial court. Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 33-34, 717 A.2d 77 (1998). We see no reason to depart from these principles in the present case.

The judgment is affirmed.

In this opinion CALLAHAN, C. J., and NORCOTT, Js., concurred.

MCDONALD, J.,

with whom BERDON, J., joins, dissenting. I do not agree that the city of Hartford may inteipose the 1993 agreement to bar the plaintiff, HLO Land Ownership Associates Limited Partnership (taxpayer), from seeking review of its 1994 tax assessment. The plain language of the 1993 agreement reveals that the taxpayer expected the next revaluation to take place in October, 1994, and that the agreed upon valuation would be subject to change after that date. It is inescapable that Hartford knew that the taxpayer entered into the agreement with the expectation that there would be a revaluation in 1994. It also is clear that Hartford stated that it, too, expected that there would be a revaluation in 1994. There is no dispute that Hartford, when given the discretion not to conduct a revaluation in 1994, did not conduct that revaluation. Hartford then used the 1993 agreement to block the taxpayer’s request for a revaluation in 1994.

In effect, the majority excises from the contract the expectation of both parties that there would be a revaluation in 1994 and allows Hartford — at the taxpayers’ expense — to no longer “expect” the 1994 revaluation by simply opting not to conduct such a revaluation. To expect means “to consider . . . certain.” Webster’s Third New International Dictionary. Because it had the power to do something and decided not to do it, Hartford did not treat the revaluation as “certain.” Unless the language of the contract is entirely illusory, it required, at a minimum, that Hartford not take, at its sole option, affirmative action to avoid the 1994 revaluation. That is, Hartford had a duty to act in good faith. “The tendency of the law is to avoid the finding that no contract arose due to an illusory promise when it appears the parties intended a contract. ... An implied obligation to use good faith is enough to avoid the finding of an illusory promise.” 2 A. Corbin, Contracts (Rev. Ed. 1995) § 5.28, pp. 149-50. Since it did not keep its promise, which, in the words of Justice Benjamin Cardozo, was “fairly to be implied”; Wood v. Duff-Gordon, 222 N.Y. 88, 91, 118 N.E. 214 (1917); Hartford breached the contract. Because Hartford breached the contract in October, 1994, it should not be rewarded with a windfall consisting of an extension under that contract. Under the circumstances of this case, the taxpayer is entitled to appeal the assessment.

The hallmark of government in this country and this state should be that it acts fairly in its dealings with those subject to its actions, even taxpayers. In this case, Hartford failed to keep its word to the taxpayer and successfully sought to take advantage of that failure. By rewarding Hartford for conduct “against common right and reason”; Dr. Bonham’s Case, 77 Eng. Rep. 646, 652 (1610); the majority does not do justice. The law has that duty first of all, as Lord Edward Coke taught in Dr. Bonham’s Case.

The majority sustains Hartford’s position because the taxpayer did not make this argument before the trial court. I would hold that the interests of justice require us to recognize the manifest unfairness of Hartford’s conduct and of the result in the trial court. See Seale v. Domian, 235 Conn. 679, 692, 668 A.2d 1333 (1996).

Accordingly, I respectfully dissent.

       The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

       General Statutes § 12-117a provides: “Any person, including any lessee of real property whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, claiming to be aggrieved by the action of the board of tax review or the board of assessment appeals, as the case may be, in any town or city may, within two months from the date of the mailing of notice of such action, make application, in the nature of an appeal therefrom, with respect to the assessment list for the assessment year commencing October 1, 1989, October 1,1990, October 1, 1991, October 1, 1992, October 1, 1993, October 1, 1994, or October 1, 1995, and with respect to the assessment list for assessment years thereafter, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court. Such citation shall be signed by the same authority and such appeal shall be returnable at the same time and served and returned in the same manner as is required in case of a summons in a civil action. The authority issuing the citation shall take from the applicant a bond or recognizance to such town or city, with surety, to prosecute the application to effect and to comply with and conform to the orders and decrees of the court in the premises. Any such application shall be a preferred case, to be heard, unless good cause appears to the contrary, at the first session, by the court or by a committee appointed by the court. The pendency of such application shall not suspend an action by such town or city to collect not more than seventy-five per cent of the tax so assessed or not more than ninety per cent of such tax with respect to any real property for which the assessed value is five hundred thousand dollars or more, and upon which such appeal is taken. If, during the pendency of such appeal, a new assessment year begins, the applicant may amend his application as to any matter therein, including an appeal for such new year, which is affected by the inception of such new year and such applicant need not appear before the board of tax review or board of assessment appeals, as the case may be, to make such amendment effective. The court shall have power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable, and, if the application appears to have been made without probable cause, may tax double or triple costs, as the case appears to demand; and, upon all such applications, costs may be taxed at the discretion of the court. If the assessment made by the board of tax review or board of assessment appeals, as the case maybe, is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes, together with interest and any costs awarded by the court, or, at the applicant’s option, shall be granted a tax credit for such overpayment, interest and any costs awarded by the court. Upon motion, said court shall, in event of such overpayment, enter judgment in favor of such applicant and against such city or town for the whole amount of such overpayment, together with interest and any costs awarded by the court. The amount to which the assessment is so reduced shall be the assessed value of such property on the grand lists for succeeding years until the tax assessor finds that the value of the applicant’s property has increased or decreased.”
      The plaintiff first had appealed to the board of assessment appeals of the defendant, which denied the plaintiffs appeal.

       In its original complaint, the plaintiff challenged only the 1995 assessment. Thereafter, the plaintiff amended its complaint to include a challenge to the 1996 assessment.

       The parties also agreed that the subject property was to be recognized as a single parcel of vacant land known as 10-52 Ford Street.

       General Statutes (Rev. to 1993) § 12-62 (f) provided in pertinent part: “[T]he assessors of all towns . . . which have implemented a program of property tax surcharges and credits in accordance with subsections (e) to (k), inclusive, of section 12-62d, shall no later than five years following the effective date of the last preceding revaluation of all real property and every five years thereafter, revalue all of the real estate in their respective municipalities for assessment purposes . . . .” This statute applied to revaluation by the defendant, which had implemented a program of property tax surcharges and credits beginning with the October 1, 1989 grand list.

       Public Acts, Spec. Sess., May, 1994, No. 94-4, § 51, provided in pertinent part: “[T]he local legislative body of a municipality may, at its option, stay the implementation of such municipality’s revaluation in order to implement the recommendations of the Property Tax Reform Commission enacted during the 1995 session of the general assembly . . . for a period or periods not to exceed in the aggregate two years . . . .”

       Public Acts 1995, No. 95-283, § 8, provided in pertinent part: “[T]he local legislative body of a municipality may, at its option, stay the implementation of such municipalily’s revaluation in order to implement the recommendations of the Property Tax Reform Commission .... The local legislative body of a municipality may stay such implementation for a period or periods not to exceed in the aggregate [two] THREE years. . . .”

       DT Chase Enterprises, Inc., was the company that managed the property of the plaintiff.

       During the plaintiffs case-in-chief, it asked Steele to describe the importance of the language relating to the expectation of an October 1, 1994 valuation. The defendant objected, arguing that the document was self-explanatory. The trial court allowed the testimony, subject to the court’s later determination regarding the ambiguity of the contract language. The court stated: “After reviewing the testimony, if the court determines that there is no ambiguity then the court will disregard the parol evidence.” In its memorandum of decision, the court determined that the contract language was not ambiguous and that, therefore, the parol evidence was inadmissible. The court, therefore, disregarded the parol evidence. This procedure employed by the trial court was improper.

        General Statutes § 52-208 provides in relevant part: “Whenever evidence offered upon the trial of any civil action is objected to as inadmissible, the court or committee trying such action shall not admit such evidence subject to the objection, unless both parties agree that it be so admitted . . . .” The appropriate procedure, therefore, would have been for the plaintiff to make an offer of proof regarding Steele’s testimony, and for the trial court to have ruled on its admissibility. The plaintiff, however, was not harmed by this unorthodox procedure, as it acknowledged in oral argument before this court.
      In answer to the question, Steele responded: “The date of revaluation was crucial to the financial aspects of the settlement, in essence we felt we were stipulating or agreeing to a very high value on the property; we felt it was considerably more than the property was worth at the present time; we felt the future development prospects were bleak at best, and the only way we could generate any income was as a parking lot.
      “With that as a background, with that as an assumption, which I think has been borne out, why would we agree to a very high value if we expected that value to be relevant for a long period of time? The only reason we agreed to that high value was based on the understanding that that value would only be applicable until the next revaluation date of October 1994, and by agreeing with the [defendant] and not fighting with the [defendant], we would save ourselves the time and trouble of litigation and the costs, and so on and so forth. So the actual date of revaluation was crucial to us, since in our minds we were agreeing to an extremely high value for the property.”

       In pretrial oral argument before the trial court, the plaintiffs position was that the expectation of valuation on October 1, 1994, was a condition of the agreement between the plaintiff and the defendant, and that “had that not been a condition of the agreement there would have been no agreement.” The plaintiff also argued that “since both parties indicated that the next [revaluation] they expected would be as of October 1, 1994, and since that did not happen, that there was a mutual mistake.” The plaintiff, however, did not make these arguments in its posttrial brief to the trial court, and specifically has not renewed this argument on appeal. Moreover, in argument before this court, the plaintiff expressly disclaimed any assertion that the subject stipulation should be rescinded based upon the existence of a mutual mistake. We do not consider, therefore, whether the facts of this case would warrant a rescission of the contract between the plaintiff and the defendant.
      We note, however, that the factual predicate necessary for a trial court’s finding of mutual mistake, and the practical ramifications of such a finding, are very different from the issues presented in this appeal. The factual predicate is that the plaintiff would have to prove that both parties bargained based upon the same mistaken understanding. Buol Machine Co. v. Buckens, 146 Conn. 639, 641, 153 A.2d 826 (1959) (“[Rescission of a contract on the ground of mutual mistake may be granted in a proper case where the mistake is common to both parties and by reason of it each has done what neither intended”). The practical ramifications are that the plaintiff would be required to go back to square one and litigate the first tax appeal, thus forgoing those benefits it did gain from the settlement, and taking the risk that its legal theory in that appeal — that a taxpayer can gain an interim reduction in its assessment by voluntarily destroying its building — might not prevail.

       We note that even if we were to address this claim, we would not, be inclined to reverse the judgment of the trial court on the basis of plain error. There is no basis in the language of the stipulated judgment to infer an obligation on the part of the defendant to make its best efforts to revalue all of the property in the city.

       This is, however, the second time within the past year that a majority of this court has endorsed placing an unfair burden on taxpayers by allowing a municipality to postpone its supposedly decennial revaluation of property taxes. See Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 584, 715 A.2d 46 (1998); see also id. (Berdon, J., dissenting). These cases are a portent of the ever worsening treatment of this state’s taxpayers.


author: KATZ, J.

text:
    VINCENT J. DOWLING, SR., ET AL. v. FINLEY ASSOCIATES, INC., ET AL.
    (SC 15998)
    Callahan, C. J., and Borden, Berdon, Katz and Peters, Js.
    Argued February 17
    officially released April 6, 1999

      Richard P. Weinstein, with whom, on the brief, was Nathan P. Schatz, for the appellants (plaintiffs).

      R. Bartley Iialloran, with whom, on the brief, was Steven S. Berizzi, for the appellees (defendants).
   Opinion

KATZ, J.

The principal issue in this certified appeal is whether a general verdict rendered in a prior action may be relied upon as a basis on which to invoke the doctrine of collateral estoppel in a subsequent action between the same parties. We conclude that a general verdict may not serve as a basis for the doctrine of collateral estoppel. Accordingly, we reverse the judgment of the Appellate Court to the contrary.

This appeal arises out of two separate but related actions between the same parties. Judgments were rendered for the defendants in both actions and the appeals from those judgments were consolidated. The following relevant facts were set forth by the Appellate Court in its opinion. “The first action was based on an investment made by the plaintiffs in a real estate project in downtown Hartford. It was commenced in 1992 when the plaintiffs Vincent J. Dowling, Sr., and Vincent J. Dowling, Jr., filed a five count complaint against the defendants George C. Finley and Finley Associates, Inc. Counts one and two alleged violations of the Connecticut Uniform Securities Act (CUSA), General Statutes (Rev. to 1995) § 36-470 et seq. Count three alleged a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. Count four alleged intentional misrepresentation, and count five alleged negligent misrepresentation. The plaintiffs sought monetary damages, rescission and interest.

“The defendants filed an answer and raised special defenses based on the applicable statutes of limitation. Count one, which alleged a violation of CUSA and sought the equitable remedy of rescission, was reserved to the court. The plaintiffs withdrew count three, and the remaining counts were tried to a jury, which returned a general verdict for the defendants on January 27,1995. On the plaintiffs’motion, a mistrial was entered as to count one on January 16,1996, because a decision had not been rendered within the required 120 day period. See General Statutes § 51-183b.

“The second action, which arose from the same facts as the first, was commenced in 1995, when the plaintiffs filed a two count complaint against the defendants, seeking indemnification of sums paid in a prior settlement. The trial court granted the defendants’ request to file a consolidated motion for summary judgment as to count one of the 1992 action and both counts of the 1995 action.

“The trial court granted the motion for summary judgment as to count one of the 1992 action, finding that the plaintiffs failed to bring their cause of action within the maximum five year limitation period established in General Statutes § 36b-29 (f). The court also granted the motion as to both counts of the 1995 action, concluding that these claims were barred by the doctrine of collateral estoppel.” Dowling v. Finley Associates, Inc., 49 Conn. App. 330, 331-33, 714 A.2d 694 (1998).

The plaintiffs filed a consolidated appeal to the Appellate Court from the trial court’s rendering of summary judgment as to the 1995 action and count one of the 1992 action, claiming that “the trial court improperly (1) determined that count one of the 1992 action was barred by the statute of limitations set forth in § 36b-29 (f) and (2) concluded that the 1995 action was barred by the doctrine of collateral estoppel.” Id., 333.

In the first count of the 1992 action, the plaintiffs alleged that the defendants, in violation of CUSA, had held themselves out as financial consultants, sold securities to the plaintiffs without being registered as broker-dealers and concealed the fact that they were receiving a sales commission in connection with the plaintiffs’ investment. The Appellate Court concluded that, “[although the plaintiffs sought equitable relief in count one, they are not exempt from the [five year] time limitations set forth in § 36b-29 (f) because their cause of action was brought pursuant to § 36b-29 (a). Where a party seeks equitable relief pursuant to a cause of action that would also allow that party to seek legal relief, concurrent legal and equitable jurisdiction exists, and the statute of limitations that would be applicable to bar the legal claim also applies to bar the equitable claim. . . . [B]ecause the plaintiffs filed their complaint more than five years after the alleged CUSA violation, the trial court properly determined that count one of the 1992 action was barred by the statute of limitations set forth in § 36b-29 (f).” (Citations omitted.) Id., 335.

With regard to their second claim on appeal, the plaintiffs first argued that collateral estoppel would not apply because there would be no final judgment in the 1992 action were the Appellate Court to reverse the judgment of the trial court as to count one of the 1992 action and to remand for further proceedings. Because the Appellate Court declined to reverse the 1992 judgment, it concluded that the 1992 judgment was final. Id., 336.

The plaintiffs next argued that “collateral estoppel cannot be applied in cases of general verdicts because it is not possible to ascertain on which facts the jury relied.” Id., 336-37. The Appellate Court determined that the doctrine applied to the present case and, accordingly, affirmed the judgment of the trial court. Id., 339.

We granted the plaintiffs petition for certification limited to the following issue: “Did the Appellate Court properly conclude that, with respect to the plaintiffs’ 1995 indemnification action, the prior general verdict barred the action because of the doctrine of collateral estoppel?” Dowling v. Finley Associates, Inc., 247 Conn. 907, 720 A.2d 513 (1998). This appeal followed.

In this certified appeal, the plaintiffs again argue that collateral estoppel cannot be applied in cases of general verdicts because it is not possible to ascertain the facts on which the jury relied. Before deciding this issue, it is incumbent upon the court to revisit some well established principles of law and their relation to one another.

We begin with the standards governing our review of a trial court’s decision to grant a motion for summary judgment. “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. . . . Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Id., 745. The party seeking summary 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; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book § 381 [now § 17-46]. . . . Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105, 639 A.2d 507 (1994).” (Internal quotation marks omitted.) Doty v. Mucci, 238 Conn. 800, 805-806, 679 A.2d 945 (1996).

In the 1992 action, the trial court submitted three counts to the jury, each alleging (1) that the defendants had violated the plaintiffs’ legal rights by receiving commissions from the sale of securities despite the fact that they were unlicensed and (2) that the defendants had caused damages to the plaintiffs as a result. The defendants denied the plaintiffs’ claims of liability and damages and pleaded special defenses to each count on the basis of the applicable statute of limitations. The jury rendered a general verdict in favor of the defendants on all three counts. We, therefore, turn next to our law on the general verdict rule.

“Under the general verdict rule, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. . . . Thus, in a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall. . . . The rule rests on the policy of the conservation of judicial resources, at both the appellate and trial levels.” (Citations omitted; internal quotation marks omitted.) Gajewski v. Pavelo, 229 Conn. 829, 836, 643 A.2d 1276 (1994).

“On the appellate level, the rule relieves an appellate court from the necessity of adjudicating claims of error that may not arise from the actual source of the jury verdict that is under appellate review. In a typical general verdict rule case, the record is silent regarding whether the jury verdict resulted from the issue that the appellant seeks to have adjudicated. Declining in such a case to afford appellate scrutiny of the appellant’s claims is consistent with the general principle of appellate jurisprudence that it is the appellant’s responsibility to provide a record upon which reversible error may be predicated. See, e.g., McLaughlin v. Bronson, 206 Conn. 267, 277-78, 537 A.2d 1004 (1988).

“In the trial court, the rale relieves the judicial system from the necessity of affording a second trial if the result of the first trial potentially did not depend upon the trial errors claimed by the appellant. Thus, unless an appellant can provide a record to indicate that the result the appellant wishes to reverse derives from the trial errors claimed, rather than from the other, independent issues at trial, there is no reason to spend the judicial resources to provide a second trial.” Curry v. Burns, 225 Conn. 782, 790, 626 A.2d 719 (1993).

Therefore, the general verdict rule is a rule of appellate jurisprudence designed to further the general principle that “it is the appellant’s responsibility to provide a record upon which reversible error may be predicated.” Id. “A party desiring to avoid the effects of the general verdict rule may elicit the specific grounds for the verdict by submitting interrogatories to the jury.” (Internal quotation marks omitted.) Id., 786.

This court has held that the general verdict rule applies to the following five situations: “(1) denial of separate counts of a complaint; (2) denial of separate defenses pleaded as such; (3) denial of separate legal theories of recovery or defense pleaded in one count or defense, as the case may be; (4) denial of a complaint and pleading of a special defense; and (5) denial of a specific defense, raised under a general denial, that had been asserted as the case was tried but that should have been specially pleaded.” Id., 801. Because the 1992 action falls under the fourth situation, the general verdict rule would have been applicable to the plaintiffs’ appeal from that judgment to “prevent an appellate court from disturbing a verdict that may have been reached under a cloud of error, but is nonetheless valid because the jury may have taken an untainted route in reaching its verdict.” Sady v. Liberty Mutual Ins. Co., 29 Conn. App. 552, 558, 616 A.2d 819 (1992).

Finally, we turn to the last area of the common law pertinent to this case. We have had numerous opportunities recently to address the two doctrines of collateral estoppel and res judicata, their similarities and their differences. See, e.g., Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 811-12, 695 A.2d 1010 (1997); Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 589, 674 A.2d 1290 (1996); Carol Management Corp. v. Board of Tax Review, 228 Conn. 23, 32-33, 633 A.2d 1368 (1993); Jackson v. R. G. Whipple, Inc., 225 Conn. 705, 712-13, 627 A.2d 374 (1993), and cases cited therein. “Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum. [Cjlaim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits. . . . [IJssue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit. Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988), quoting Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392, 401-402, 546 A.2d 284 (1988), affd, 211 Conn. 67, 557 A.2d 540 (1989).” (Internal quotation marks omitted.) Crochiere v. Board of Education, 227 Conn. 333, 343, 630 A.2d 1027 (1993).

Both doctrines “ ‘protect the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation’ ”; Virgo v. Lyons, supra, 209 Conn. 501; and “express no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest.” State v. Ellis, 197 Conn. 436, 465, 497 A.2d 974 (1985), on appeal after remand sub nom. State v. Paradise, 213 Conn. 388, 567 A.2d 1221 (1990).

“Res judicata, or claim preclusion, is [however] distinguishable from collateral estoppel, or issue preclusion. Under the doctrine of res judicata, a final judgment, when rendered on the merits, is an absolute bar to a subsequent action, between the same parties or those in privity with them, upon the same claim. Slattery v. Maykut, 176 Conn. 147, 156-57, 405 A.2d 76 (1978). In contrast, collateral estoppel precludes a party from relitigating issues and facts actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them upon a different claim. DeLaurentis v. New Haven, 220 Conn. 225, 239, 597 A.2d 807 (1991).” Weiss v. Statewide Grievance Committee, 227 Conn. 802, 818, 633 A.2d 282 (1993).

“An issue is ‘actually litigated’ if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. ... 1 Restatement (Second), Judgments § 27, comment (d) (1982). An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered. F. James & G. Hazard, Civil Procedure (3d Ed. 1985) § 11.19. If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta. 1 Restatement (Second), [supra, comment (h)].” (Emphasis in original.) Jackson v. R. G. Whipple, Inc., supra, 225 Conn. 714-15.

“To assert successfully the doctrine of issue preclusion, therefore, a party must establish that the issue sought to be foreclosed actually was litigated and determined in the prior action between the parties or their privies, and that the determination was essential to the decision in the prior case.” Delahunty v. Massachusetts Mutual Life Ins. Co., supra, 236 Conn. 600-601. For the reasons that follow, we conclude that the doctrine of collateral estoppel is inapplicable to the present case and that, consequently, the Appellate Court improperly affirmed the judgment of the trial court.

We begin with the general verdict in the 1992 action. This verdict signifies either that the plaintiffs had failed to prove that the defendants had engaged in the alleged improper conduct or that, notwithstanding sufficient proof of liability or damages, the jury found that recovery was barred by the applicable statute of limitations, or both. This verdict left open to speculation the precise issues on which the jury may have rested its decision. “Because the jury rendered a general verdict, we cannot determine whether the case . . . was resolved on the basis of the plaintiffs failure to prove [their] case or the defendants’] successful assertion of [the statute of limitations defenses].” Cross v. Huttenlocher, 185 Conn. 390, 400, 440 A.2d 952 (1981); see also Lambert v. Stovell, 205 Conn. 1, 7 n.4, 529 A.2d 710 (1987) (general denial of complaint and statute of limitations defense causes general verdict for defendant to be reasonably rendered on one or more distinct grounds); Fabrizio v. Glaser, 38 Conn. App. 458, 465-66, 661 A.2d 126 (1995), aff d, 237 Conn. 25, 675 A.2d 844 (1996) (same).

We recognize the presumption behind the general verdict rule that the jury decided “every issue in favor of the prevailing party.” (Internal quotation marks omitted.) Curry v. Burns, supra, 225 Conn. 786. That rule operates, however, to insulate a verdict that may have been reached under a cloud of error, but which also could have been reached by an untainted route. In light of the theory behind the rule that “it is the appellant’s responsibility to provide a record upon which reversible error may be predicated”; id., 790; this presumption makes sense only in the context of appellate review of a claim of trial court error.

Indeed, the presumption behind the general verdict rule that we noted in Curry arises from an ambiguity in the record as to the precise basis of the jury’s verdict that, by itself, defeats the doctrine of collateral estoppel in this case. As we have stated, in order for the doctrine of collateral estoppel to apply, the issue of ultimate fact for which preclusion is sought must have been “actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them upon a different claim.” Weiss v. Statewide Grievance Committee, supra, 227 Conn. 818. Because a verdict to which the general verdict rule applies is necessarily one that can rest on different grounds, there is no way to know definitively that the verdict satisfied the criteria required to invoke the collateral estoppel doctrine. Specifically, in the present case, the very lack of specificity in the jury’s verdict in the 1992 action, coupled with the jury instructions; see footnote 4 of this opinion; prohibits the doctrine’s application to the 1995 case because it cannot be determined that the jury necessarily made an ultimate finding of fact in the defendants’ favor on the applicable claim of liability.

“For estoppel to apply, the fact sought to be foreclosed by [the] defendant must necessarily have been determined in his favor in the prior trial; it is not enough that the fact may have been determined in the former trial. . . . The defendant has the burden of showing that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding.” (Citation omitted; internal quotation marks omitted.) State v. Aparo, 223 Conn. 384, 406, 614 A.2d 401 (1992), cert. denied, 507 U.S. 972, 113 S. Ct. 1414, 1415, 122 L. Ed. 2d 785 (1993). “Where there is more than one possible reason for the jury’s verdict, and the court . . . cannot say that any one is necessarily inherent in the verdict, the doctrine of collateral estoppel is inapplicable . . . .” (Internal quotation marks omitted.) United States v. Irvin, 787 F.2d 1506, 1515-16 (11th Cir. 1986).

Our view that a general verdict is not entitled to collateral estoppel effect where, as here, there is no way to ascertain the precise basis of the jury’s determination in a prior adjudication, is consistent with the opinions expressed by other courts. See S.E.L. Maduro (Florida), Inc. v. M/V Antonio de Gastaneta, 833 F.2d 1477, 1483 (11th Cir. 1987) (“[i]f the jury could have premised its verdict on one or more of several issues, then collateral estoppel does not act as a bar to future litigation of the issues”); Case Prestressing Corp. v. Chicago College of Osteopathic Medicine, 118 Ill. App. 3d 782, 785-86, 455 N.E.2d 811 (1983) (“where, as here, issues of both liability and damages are sent to the jury and the jury simply returns a general verdict [against the plaintiff], estoppel will not be applied since it is not certain whether the jury found against [the] plaintiff on liability or on damages or both”); see also Chew v. Gates, 27 F.3d 1432, 1438 (9th Cir. 1994), cert. denied, 513 U.S. 1148, 115 S. Ct. 1097,130 L. Ed. 2d 1065 (1995); Owens v. Treder, 873 F.2d 604, 610 (2d Cir. 1989); C.B. Marchant Co. v. Eastern Foods, Inc., 756 F.2d 317, 319 (4th Cir. 1985); Glass v. United States Rubber Co., 382 F.2d 378, 384 (10th Cir. 1967); Heywood v. Samaritan Health System, 902 F. Sup. 1076, 1083 (D. Ariz. 1995); Angstrohm Precision, Inc. v. Vishay Intertechnology, Inc., 567 F. Sup. 537, 541 (E.D.N.Y. 1982); Rutherford v. State, 188 Cal. App. 3d 1267, 1285, 233 Cal. Rptr. 781 (1987).

The view we express in this opinion has been embraced as well in the comments to § 27 of the Restatement (Second) of Judgments. Specifically, comment (g) addresses the doctrine’s application when there has been a prior adjudication involving several issues. “If several issues are litigated in an action, and in a subsequent action between the parties, one of the parties relies on the judgment as conclusive of one of the issues, that party must show that the issue was determined by the judgment in the prior action.” 1 Restatement (Second), supra, § 27, comment (g), p. 257. Comment (i) precludes collateral estoppel effect when the prior adjudication is based on alternative determinations. “If a judgment of a court of first instance is based on determinations of two issues, either of which standing independently would be sufficient to support the result, the judgment is not conclusive with respect to either issue standing alone.” Id., comment (i), p. 259.

As the moving party seeking summary judgment, it was incumbent upon the defendants to show that the judgment against the plaintiffs in the 1992 action could not have been rendered without deciding the issues upon which the 1995 action was predicated. Because of the general verdict in the earlier action, however, the defendants could not demonstrate whether the jury had found against the plaintiffs as to liability or based upon the statute of limitations defense or, indeed, on both grounds. Therefore, the court improperly concluded that the verdict in favor of the defendants in the first action barred the litigation of the issues raised in the present action. Consequently, material issues of fact remain that cannot be resolved by summary judgment. Griffin v. Parker, 219 Conn. 363, 371, 593 A.2d 124 (1991).

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court and to remand the case to that court for further proceedings according to law.

In this opinion the other justices concurred.

       "In 1995, CUSA was transferred from General Statutes §§ 36-470 through 36-502 to General Statutes §§ 36b-l through 36b-33. For purposes of this opinion, we will refer to the current designation.” Dowling v. Finley Associates, Inc., 40 Conn. App. 330, 332 n.l, 714 A.2d 694 (1998).

       “The plaintiffs sought and received letters of credit from the predecessor of Fleet Financial Corporation (Fleet) in order to finance their investment with the defendants. When they were unable to pay the accruing interest on the letters of credit, Fleet initiated suit to recover the amount of the letters of credit, interest thereon, costs and attorney’s fees. The plaintiffs settled with Fleet.” Dowling v. Finley Associates, Inc., 49 Conn. App. 330, 332 n.2, 714 A.2d 694 (1998).

       “General Statutes § 36b-29 (f) provides in relevant part: ‘No person may bring an action under this section more than two years after the date of the contract of sale or of the contract for investment advisory services, except that (1) with respect to actions arising out of intentional misrepresentation or fraud in the purchase or sale of any interest in any limited partnership not required to be registered under the Securities Act of 1933, no person may bring an action more than one year from the date when the misrepresentation or fraud is discovered, except that no such action may be brought more than five years from the date of such misrepresentation or fraud provided, with respect to an action pending on July 1, 1993, that asserts facts upon which a claim could be asserted under this section on and after July 1, 1993, and which claim is asserted prior to January 1, 1994, no such action may be brought for intentional misrepresentation or fraud that occurred more than five years prior to the date of the filing of the complaint in such action ....”’ Dowling v. Finley Associates, Inc., 49 Conn. App. 330, 333 n.3, 714 A.2d 694 (1998).

       In deciding the issue of whether the doctrine of collateral estoppel applied, the Appellate Court agreed with the plaintiffs that the jury in the 1992 action had rendered a general verdict in favor of the defendants on all three counts. It does not appear from that court’s opinion that the defendants ever argued that this case did not involve the general verdict rule. They do not expressly do so now. Rather, the defendants argue that the standard verdict forms given to the jury acted essentially as a “special verdict, or interrogatory,” because as to each of the three counts the defendants’ verdict form asked the jury w'hether it found the issues in favor of each defendant. We note, however, that intertwined with the defendants’ assertion is a discussion of the general verdict rale. Specifically, 1he defendants observe that “[w]hen the interrogatories submitt ed 1 o a jury are general in nature, this court presumes that the jury found every issue in favor of the prevailing party.”
      We agree with the Appellate Court’s characterization of the verdict in the 1992 action as a general verdict. There is no evidence that the trial court in that action specifically instructed the jury that, by signing the verdict form, it was necessarily finding both that the plaintiffs had failed to prove their case on the merits and that they had failed timely to bring their action. Rather, to the contrary, at oral argument before this court, the defendants conceded that the jury had been instructed that if it found either that the plaintiffs had not proven their case on any count or that the defense of the statute of limitations barred the action, it should return a verdict for the defendant, and sign the single defendants’ verdict form. Although the jury could have decided both matters against the plaintiffs, it did not necessarily do so. Therefore, the verdict was a general verdict. See Cross v. Huttenlocher, 185 Conn. 390, 400, 440 A.2d 952 (1981) (“[b]ecause the jury rendered a general verdict, we cannot determine whether the case . . . was resolved on the basis of the plaintiff s failure to prove [their] case or the defendant[s'] successful assertion of [the statute of limitations defenses]”).

       The plaintiffs also argue that policy reasons exist as well for the rejection of the doctrine of collateral estoppel in the present case. Specifically, the plaintiffs assert, that, because they sought to amend the complaint in the 1992 action to add the indemnification claims that later became the subject of the present case, and because the defendants successfully opposed the amendment on the theory that it was premature, to apply the doctrine of collateral estoppel now would work an injustice. Because we agree with the plaintiffs’ primary claim, we do not address this ancillary argument.

       Specifically, the defendants asserted the following special defenses: “First Special Defense
      “1. To the extent that the Connecticut Uniform Securities Act may apply to any activity or conduct of the defendant[s] as alleged by the plaintiffs, all of the plaintiffs’ claims are barred by Connecticut General Statutes [§] 36-498 (f).
      “Second Special Defense
      “1. To the extent that the Connecticut Unfair Trade Practices Act may apply to any activity or conduct of the defendant[s] as alleged by the plaintiffs, all of the plaintiffs’ claims are barred by Connecticut General Statutes [§] 42-1 lOg (f).
      “Third Special Defense

        “1. The plaintiffs’ causes of action are barred by Connecticut General Statutes [§] 52-577.”

         We note that the statute of limitations pertinent to the causes of action in the 1992 cause action; see footnote 3 of this opinion; do not govern the present indemnification action. See General Statutes § 52-598a. Although the present indemnification action is premised on a violation of certain legal duties, which formed the foundation for the 1992 action, the claim is separate and distinct. This action asserts that the defendants’ wrongful conduct caused the plaintiffs to incur liability and suffer monetary loss in another action in the nature of a settlement payment,. The plaintiffs therefore seek indemnification for the amounts they were required to pay to the third parly in that other action. Following Protter v. Brown Thompson & Co., 25 Conn. App. 360, 365, 593 A.2d 524, cert. granted, 220 Conn. 910, 597 A.2d 335 (1991) (appeal withdrawn), in which the Appellate Court held that the underlying statute of limitations was the proper measure applicable to an indemnification action, the legislature enacted § 52-598a, which allows an action for indemnification to be brought “within three years from the date of the determination of the action against the party which is seeking indemnification by either judgment or settlement.” See Republic Ins. Co. v. Pat DiNardo Auto Sales, Inc., 44 Conn. Sup. 207, 211, 678 A.2d 516 (1995), aff d, 41 Conn. App. 686, 677 A.2d 21, cert. denied, 239 Conn. 906, 682 A.2d 1005 (1996). Therefore, it is the three year limitation period set forth in § 52-598a that controls, and not any limitation period on which the jury verdict and final judgment against the plaintiffs in the 1992 action may have rested.

       The defendants argue that it was incumbent upon the plaintiffs to ask for interrogatories, to object to the verdict form, or, finally, to object to the acceptance of the verdict and that their failure to take any of these measures “conclusively foreclos[ed] any possible objection to the jury verdict form.” These requirements are indeed still very much alive for certain claims on appeal. See, e.g., West Haven Sound Development Corp. v. West Haven, 207 Conn. 308, 315-17, 541 A.2d 858 (1988). It certainly would have been obligatory had they wanted to appeal from the judgment in that action and be relieved of the burdens of the general verdict rule. While indeed, in the absence of any such action by the plaintiffs, the general verdict rule, as a rule of appellate jurisprudence, would have acted as the defendants’ shield, there is nothing in our jurisprudence that allows the defendants to use the rule as a sword. Therefore, the plaintiffs’ failure to take the measures enumerated by the defendants plays no role in this case, wherein the verdict form and the general verdict rules are not under attack.


author: BERDON, J.

text:
    ROSEMARY KISH v. NURSING AND HOME CARE, INC., ET AL.
    (SC 15907)
    Berdon, Norcott, Palmer, McDonald and Peters, Js.

      Argued December 1, 1998
    officially released April 6, 1999

      Neil J. Ambrose, with whom, on the brief, was Andrew A. Cohen, for the appellants (defendants).

      Reid J. Farrington, with whom, on the brief, was Frank Bonito, for the appellee (plaintiff).
   Opinion

BERDON, J.

The principal issue in this appeal is whether an employee may recover workers’ compensation for an injury that she suffered while performing her job in a manner that did not comply with the letter of her employer’s policy. The workers’ compensation commissioner (commissioner), the compensation review board (board), and the Appellate Court all determined that the employee was entitled to workers’ compensation. We affirm.

The facts are not in dispute, and were well summarized by the Appellate Court. “The plaintiff, Rosemary Kish, is a registered nurse who was a salaried employee of the [defendant]. Her responsibilities [consisted of] visiting patients in their homes and overseeing their care. She made decisions concerning patient care and referred her patients to physicians and other specialists. On a normal workday, the plaintiff used her own car to visit patients and began her day by reporting to her employer’s main office at 8:30 a.m. She visited an average of five patients a day, worked out of her car, and took lunch when and where she could find the time. She also set her own work schedule and was reimbursed for her mileage. Her workday ended at approximately 4:30 p.m. and she did not return to the main office at the end of each day.

“One of the plaintiff’s patients was an elderly woman for whom she had reserved a commode at a New Canaan supply house because the commode the woman was using appeared unsafe. The plaintiffs supervisor told her not to deliver the commode herself, but to have the patient’s caretaker pick it up. While visiting that patient on April 26, 1994, the plaintiff noted that her physical condition had worsened and thought that her makeshift commode was unsafe and needed to be replaced as soon as possible. The plaintiff, therefore, decided to drive to the supply house to pick up the commode. While driving to the supply house, the plaintiff saw a postal truck parked on the opposite side of the street. Recalling that she had a greeting card to mail to a friend, the plaintiff stopped and parked her car. The plaintiff exited her car, crossed the street and handed the card to the mail carrier. While crossing back to her car, the plaintiff was struck by an automobile.

“Although there was an unwritten agency policy that visiting nurses were not supposed to pick up or deliver items for patients, such activities were not prohibited by the agency’s policy manual. The plaintiff admitted that she knew of this policy. Furthermore, her supervisor stated that the plaintiff had no specific authorization to mail a personal letter while in the course of her employment. The supervisor agreed, however, that the patient’s commode was unsafe and needed to be replaced.

“The commissioner concluded that the plaintiffs decision to pick up the commode was reasonable under the circumstances and that the plaintiff was acting in the course of her employment while doing so. She also found that the plaintiffs brief stop to mail a greeting card was so inconsequential, relative to her job duties, that it did not remove her from the course and scope of her employment. The commissioner concluded that the plaintiffs conduct was not wilful and wanton so as to preclude a workers’ compensation claim and, therefore, the plaintiffs injuries, sustained on April 26,1994, were compensable.” Kish v. Nursing & Home Care, Inc., 47 Conn. App. 620, 621-23, 706 A.2d 1372 (1998). The board and the Appellate Court both affirmed this conclusion. The defendants requested permission to appeal from the latter ruling, and we granted certification.

“It is an axiom of [workers’] compensation law that awards are determined by a two-part test. The [claimant] has the burden of proving that the injury claimed arose out of the employment and occurred in the course of the employment. There must be a conjunction of [these] two requirements ... to permit compensation. . . . The former requirement relates to the origin and cause of the accident, while the latter requirement relates to the time, place and [circumstance] of the accident.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Mazzone v. Connecticut Transit Co., 240 Conn. 788, 792-93, 694 A.2d 1230 (1997).

The certified question in the present appeal is limited to the latter Mazzone requirement. It is well settled that we parse this requirement by reference to three factors that we set forth over eighty years ago in Larke v. Hancock Mutual Life Ins. Co., 90 Conn. 303, 308, 97 A. 320 (1916): “In order to establish that [the] injury occurred in the course of employment, the claimant has the burden of proving that the accident giving rise to the injury took place (a) within the period of the employment; (b) at a place [the employee] may reasonably [have been]; and (c) while [the employee was] reasonably fulfilling the duties of the employment or doing something incidental to it.” (Emphasis added; internal quotation marks omitted.) Mazzone v. Connecticut Transit Co., supra, 240 Conn. 793.

Because the first prong of the Larke inquiry is neither contested by the defendants nor addressed by the certified question, we limit our discussion to the remaining two prongs. For present puiposes, it therefore suffices to state that — in order to be compensable — the plaintiffs injury must have occurred (1) at a place where she reasonably may have been and (2) while she was reasonably fulfilling the duties of her employment or doing something incidental to it. Id.; accord Spatafore v. Yale University, 239 Conn. 408, 418, 684 A.2d 1155 (1996); McNamara v. Hamden, 176 Conn. 547, 550-51, 398 A.2d 1161 (1979); Larke v. Hancock Mutual Life Ins. Co., supra, 90 Conn. 308. The defendants claim that the commissioner could not reasonably have found that the plaintiff satisfied either prong of this test. We are not persuaded on either count.

We insulate the work of the commissioner by affording it a substantial quantum of deference. “[T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . [T]he 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. . . . Moreover, the fact that the inference may involve an application of a broad statutory term or phrase to a specific set of facts does not result in any greater scope of judicial review.” (Citation omitted; internal quotation marks omitted.) Crochiere v. Board of Education, 227 Conn. 333, 347, 630 A.2d 1027 (1993); accord Mazzone v. Connecticut Transit Co., supra, 240 Conn. 792; Spatafore v. Yale University, supra, 239 Conn. 418 (“[t]he determination of whether an injury arose out of and in the coruse of employment is a question of fact for the commissioner”); Fair v. People’s Savings Bank, 207 Conn. 535, 539-40, 542 A.2d 1118 (1988); Herbst v. Hat Corp. of America, 130 Conn. 1, 4, 31 A.2d 329 (1943).

In the present appeal, the plaintiff (1) was at a place where she was reasonably entitled to be because (2) it was necessary to be where she was in order to fulfill the duties of her employment. The facts in support of this conclusion may be stated briefly. The defendant had authorized the plaintiff to drive in the vicinity where she was injured; in fact, the defendant required her to do so in the performance of her duties, and compensated her both for her mileage and for the time that she spent on the road between patients. At the time of her injury, the plaintiff — a professional nurse — was attempting to obtain a medical necessity for a patient who desperately needed it. For these reasons, the commissioner was correct to award compensation, and both the board and the Appellate Court were correct to affirm that award.

The defendants’ argument that the commissioner abused his discretion focuses upon two details, neither of which is material. First, the defendants emphasize that the defendant did not acquiesce to the manner in which the plaintiff sought to benefit her patient. This emphasis does not avail the defendants.* * “[W]hen misconduct involves a violation . . . relating to the method of accomplishing [the] ultimate work [to be done by the claimant], the act remains within the course of employment.” (Emphasis in original.) 2 A. Larson & L. Larson, Workers’ Compensation Law (1998) § 31.00, p. 6-10. The plaintiffs “ultimate work” consisted of bringing medical care to the homes of patients; this is precisely what she was doing when she was injured. On the day of the accident, the plaintiff observed that her elderly patient’s condition had deteriorated: she could neither get out of bed nor walk without assistance. The commissioner explained that the plaintiff determined, “based on her twenty-two years of experience as a nurse, and based on the condition of her patient . . . that it was imperative that a property] functioning commode be obtained for [her patient] as expeditiously as possible.” The plaintiffs supervisor concurred with the plaintiffs diagnosis, which was the sole motivation for the trip to New Canaan.

In short, the plaintiff was injured in the midst of her effort to procure a medical necessity for her patient’s home. It could not be plainer that the trip taken to accomplish this goal constituted the very work for which the defendant employed the plaintiff, even if the method did not comport with the employer’s wishes. The contrary result would “reduc[e] the distinction [between ‘ultimate work’ and ‘method’] to absurdity.” Id., § 31.21, p. 6-26.

Second, the defendants emphasize that the plaintiff was mailing a greeting card — rather than driving to procure a medical necessity for her patient’s home— at the moment she was injured. This emphasis is also unavailing. As discussed previously, an injury is com-pensable if it occurs while the employee is “reasonably fulfilling the duties of the employment or doing something incidental to it.” (Emphasis added; internal quotation marks omitted.) Mazzone v. Connecticut Transit Co., supra, 240 Conn. 793. Over a decade ago, we observed that “no bright line test distinguishes activities that are incidental to employment from those that constitute a substantial deviation therefrom. . . . The question of deviation is typically one of fact for the trier. Labbe v. American Brass Co., 132 Conn. 606, 609-10, 46 A.2d 339 (1946). In deciding whether a substantial deviation has occurred, the trier is entitled to weigh a variety of factors, including the time, place and extent of the deviation; Herbst v. Hat Corporation of America, [supra, 130 Conn. 7]; as well as ‘what duties were required of the employee and the conditions surrounding the performance of his work . . . .’ Farnham v. Labutis, 147 Conn. 267, 270, 160 A.2d 120 (1960).” (Citations omitted.) Rawling v. New Haven, 206 Conn. 100, 107, 537 A.2d 439 (1988); accord Luddie v. Foremost Ins. Co., 5 Conn. App. 193, 196-97, 497 A.2d 435 (1985) (“In determining whether an unauthorized deviation from the employment is so slight as not to relieve the employer from liability, or of such a character as to constitute a temporary abandonment of the employment, [t]he true test is analogous to that applied to determine whether a deviation in agency terminates that relationship. . . . [T]he trier must take into account, not only the mere fact of deviation, but its extent and nature relatively to time and place and circumstances, and all the other detailed facts which form a part of and truly characterize the deviation . . . .” [Citation omitted; internal quotation marks omitted.]); 1 A. Larson & L. Larson, supra, § 19.00, p. 4-444 (“[a]n identifiable deviation from a business trip for personal reasons takes the employee out of the course of employment . . . unless the deviation is so small as to be disregarded a,s insubstantial” [emphasis added]).

The defendants misstate our law when they assert that “the employer’s permission (express or tacit) is crucial to a finding that an activity is . . . incidental to the employment.” Significantly, neither of the two cases upon which the defendants relied at oral argument involves an analysis of the “incidental to [employment]” prong of the Larke test. See Mazzone v. Connecticut Transit Co., supra, 240 Conn. 796-97 (requiring approval or acquiescence under “place [where employee] may reasonably [have been]” prong of Larke); Herbst v. Hat Corp. of America, supra, 130 Conn. 6 (same). That said, several of the other cases cited in the defendants’ brief appear to lend credence to their claim that acquiescence is “crucial” to a finding that a particular act is “incidental to [employment].” This appearance is deceiving.

Of the three prongs of the “course of employment” test set forth in Larke, the “incidental to [employment]” inquiry “has been most subject to distortion from one type of case to another.” McNamara v. Hamden, supra, 176 Conn. 552. Nearly seventy years ago, we recognized that “[n]o exact statement, applicable in all cases, can be made as to what is incidental to an employment.” Stakonis v. United Advertising Corp., 110 Conn. 384, 390, 148 A. 334 (1930). Although we remain unwilling to assay an exhaustive taxonomy of acts that are “incidental to [employment],” the present appeal calls upon us to clarify the contours of our law. For present purposes, it suffices to explain that the term of art “incidental” embraces two very different kinds of deviations: (1) a minor deviation that is “so small as to be disregarded as insubstantial”; 1 A. Larson & L. Larson, supra, § 19.00, p. 4-444; and (2) a substantial deviation that is deemed to be “incidental to [employment]” because the employer has acquiesced to it. If the deviation is so small as to be disregarded as insubstantial, then the lack of acquiescence is immaterial.

This distinction reflects both common sense and fundamental fairness. Our law of workers’ compensation— like our law of agency — presumes that employers acquiesce to minor deviations that are so small as to be disregarded as insubstantial. To use a simple exam-pie, it would be both senseless and unjust to deny compensation to a claimant merely because she was injured while pausing for a moment to converse with a colleague standing by the proverbial water cooler.

Returning to the facts before us in the present appeal, we conclude that the absence of permission is not fatal to the plaintiffs claim, because the deviation was so minor as to be disregarded as insubstantial. We agree with the board and the Appellate Court that the commissioner did not abuse his discretion by concluding that the plaintiffs decision to “momentarily [stop] to mail a personal card was so inconsequential ... so as to not remove her from acting in the course and scope of her employment . . . .”

It is telling that the professors Larson chose, in their treatise on workers’ compensation law, to employ a hypothetical akin to the facts of the present appeal as the paradigm of an insubstantial deviation. They explain that such deviations represent “the kind of momentary diversions which, if undertaken by an inside employee working under fixed time and place limitations, would be compensable .... For, while crossing a street may seem to be a more conspicuous deviation than crossing a room, there is really no difference in principle between the trucker, whose work-place is the street, who crosses the street for a glass of beer, and an inside worker who goes an equal distance down the hall to get a cola drink from the cola machine . . . .” (Emphasis added.) Id., § 19.63, p. 4-527.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       In this opinion, “the defendant” refers to Nursing and Home Care, Inc., the named defendant in this case. References to “the defendants” include both the named defendant and Connecticut Hospital Association Workers’ Compensation Trust.

       We granted certification limited to the following issue: “Did the [commissioner], the [board] and the Appellate Court properly conclude that the [plaintiff] satisfied the second and third elements of the ‘in the coruse of employment’ test, which require that the employee, at the time of injury, be at a place where she may reasonably have been while fulfilling the duties of her employment or doing something incidental to it?” Kish v. Nursing & Home Care, Inc., 244 Conn. 919, 920, 714 A.2d 6 (1998).

       See footnote 2 of this opinion.

       See footnote 2 of this opinion.

       “[T]he plaintiff could reasonably be found driving her automobile in the general area of the accident during her workday, with either the express or implied permission or acquiescence of her employer . . . .” Kish v. Nursing & Home Care, Inc., supra, 47 Conn. App. 625.

       In fact, the defendants concede that an employee does “not automatically disqualify herself from workers’ compensation benefits by simply violating a rule . . . .”

       The commode was unsafe, in large measure, because the elderly patient’s medical condition left her particularly vulnerable and fragile.

       “The only tricky feature of [the] distinction [between ‘ultimate work’ and ‘method’] is that it can, by a play upon words, be converted into a contradiction of itself. . . . [B]y . . . blending ultimate object and method, one can convert all instructions on method into delimitations of scope of employment, and end by reducing the distinction to absurdity. One can say that a lineman is employed only to repair lines while he has his gloves on, that an errand boy is employed to deliver a message by way of Street A and not by way of Street B, and that an oiler is employed to oil only machines that are standing still and not those that are in motion. . . . [Such] sophistry has had very little success, and the great weight of present authority respects the plain meaning of the distinction between method and ultimate objective.” 2 A. Larson & L. Larson, supra, § 31.21, pp. 6-25 through 6-26.

       Although the pertinent claim in Rawling sounded in statutory indemnification, rather than workers’ compensation, all of the cases cited in the quoted passage are workers’ compensation cases. Moreover, we expressly invoked in Rawling “the meaning of ‘course of employment’ under workers’ compensation law" in order to interpret the phrase “in the course of his duty" as that term is used in General Statutes § 53-39a. Rawling v. New Haven, supra, 206 Conn. 106. “That statute affords a police officer a right of indemnity for economic loss incurred for a prosecution ‘for a crime allegedly committed by such officer in the course of his duty as such’ if ‘the charge is dismissed or the officer found not guilty.’ ” Id., 104.

       We wish to be scrupulously clear on this point. Although we did hold that the claimant in Mazzone was entitled to compensation “only if the [employer] had either approved of or acquiesced in the claimant’s presence on an out of service bus during the lunch time period,” we carefully and explicitly limited this holding to the “place” prong of the Larke inquiry. Mazzone v. Connecticut Transit Co., supra, 240 Conn. 796. More fully, we explained that: “[W]e must . . . determine if, on the record before us, the claimant has satisfied the second part of the ‘in the course of employment’ test by proving that, at the time of his injury, he was ‘at a place [he] may reasonably [have been].’ . . . We begin by noting that, unden• this part of the ‘in the course of employment’ test, the claimant cannot prevail simply by proving that he was on the employer’s premises at the time of his injury. . . . [I]n order to be eligible for compensation, [the claimant] must have had a right to be on the out of service bus when his accident occurred. ... We conclude that the claimant had such a right only if the [employer] had either approved of or acquiesced in the claimant’s presence on an out of service bus during the lunch time period.” (Citations omitted; emphasis added.) Id.; see Herbst v. Hat Corp. of America, supra, 130 Conn. 6 (“Whether [the injury] occurred at a place where [the claimant] might reasonably [have been] is the question to be decided by the commissioner. The test is, was the use of [the] route [along which the claimant was injured] a risk annexed to the employment by the acquiescence of the employer?” [Emphasis added.]). As we have previously discussed, we find that the defendant in the present appeal acquiesced to the trip that the plaintiff took in order to procure a medical necessity for her patient.

       See footnote 14 of this opinion for a discussion of these cases.

       Correlatively, if the employer has acquiesced, then it is immaterial that the deviation was substantial.

       “In determining whether an unauthorized deviation from the employment is so slight as not to relieve the employer from liability, or of such a character as to constitute a temporary abandonment of the employment, ‘[t]he true test is analogous to that applied to determine whether a deviation in agency terminates that relationship.’ Herbst v. Hat Corporation of America, [supra, 130 Conn. 7].” Luddie v. Foremost Ins. Co., supra, 5 Conn. App. 196-97.

       This case presents us with our first opportunity to base a holding upon the insubstantial character of a deviation. It has been unnecessary to do so thus far because, in the overwhelming run of cases, employers acquiesce in the claimants’ deviations. See McNamara v. Hamden, supra, 176 Conn. 555 (employer “sanctioned” relevant activity, which “occurred regularly on the premises of the employer”); Katz v. Katz, 137 Conn. 134, 137, 75 A.2d 57 (1950) (claimant injured while following employer’s express directions); Ruckygaber v. Clark, 131 Conn. 341, 344, 39 A.2d 881 (1944) (“[t]he essential causal connection between the injury and the employment or the conditions incident thereto, by reason of the fact that the trip . . . was made . . . pursuant to the specific order of the [employer], is manifest”); Stakonis v.
        United Advertising Corp., supra, 110 Conn. 390 (claimant ipjured while “acting under orders of his employer . . . [and] fulfilling one of the duties of his employment, or at least . . . doing something which [the employer] had annexed to the employment and made incidental to it”). We reject the defendant’s claim that dicta in these cases compel the conclusion that no activity — no matter how inconsequential — may ever qualify as “incidental to [employment]” unless the employer has acquiesced.
      As authority for its claim that “the employer’s permission ... is crucial to a finding that an activity is . . . incidental to the employment,” the only case from this court that the defendant has cited is McNamara. In McNamara, we clarified our jurisprudence under the “incidental to [employment]” prong of the Larke inquiry by holding that a benefit to the employer is not a prerequisite for compensability. McNamara v. Hamden, supra, 176 Conn. 555. Significantly, we also stated in McNamara that acquiescence “constitute[s] a sufficient” — not a necessary — “basis on which to conclude that [an activity is] an incident of the employment. . . .” (Emphasis added.) Id., 556. As noted previously, the employer in McNamara sanctioned the relevant activity. Id., 555. We held in McNamara that this was enough to justify workers’ compensation, not that it was indispensable. Id., 556.
      The defendants have called our attention to only two cases in which this court has ever denied compensation because the employer did not acquiesce to the relevant act. Neither of these cases casts any doubt upon the proposition that employers acquiesce to deviations that are so small as to be disregarded as insubstantial. In Vitas v. Grace Hospital Society, 107 Conn. 512, 517-18, 141 A. 649 (1928), the court repeatedly emphasized that actual knowledge is not a condition precedent to compensability; again and again, the opinion stressed that “constructive knowledge” may suffice. See id. (explaining that courts may “charge the employer with notice of [the] plaintiffs act,” “infe[r] that [the] employer” either permitted or knew of a particular act, “make [an] inference as [a] matter of law,” and “imput[e] to [the employer] knowledge of the [claimant’s] practice”). On the facts of Vitas, the court determined that “the circumstances surrounding the condition of the [place where the claimant was injured] and the supervision over it were [not] such that from them might be drawn the necessary inferences” required to support a finding that the relevant act was incidental to employment. Id., 518. Although the court did not put it in these terms in Vitas, it is apparent that the commissioner may extract the “necessary inferences” from the fact that the deviation is so small as to be disregarded as insubstantial.
      That leaves only one case from this court: Farnham v. Labutis, supra, 147 Conn. 267. In the wake of McNamara, the precedential value of Famham is questionable. In Famham, we relied upon the fact that the commissioner’s finding was “silent as to whether the [activity] . . . was of . . . benefit or advantage to the employer . . . .” Id., 271. As discussed previously, we unequivocally rejected this consideration in McNamara. Even if the case were directly on point, however, Farnham cites Vitas for the proposition that a deviation may “bec[o]me incidental to the employment ... by the . . . implied consent of the employer.” Id. For the reasons discussed previously, this proposition clearly comports with our discussion of deviations that are so small as to be disregarded as insubstantial. Accordingly, it is of no moment that we deemed it necessary in Farnham to remand to the commissioner for further fact-finding. Id., 272.

         In contrast, it is not unfair to deny compensation to a claimant injured at a place where she was not reasonably entitled to be, unless the employer acquiesced. See footnote 10 of this opinion. The rationale for this distinction inheres in the fact that absence from the workplace constitutes a substantial deviation from the scope of employment. If — instead of suffering an injury while conversing with a colleague at the water cooler — the claimant were injured while conversing with a relative in a town 100 miles from her place of work, neither common sense nor equity would dictate that she should be entitled to compensation if her employer had not acquiesced to the deviation.

       The professors Larson include in their treatise a survey of opinions upholding awards to employees who were injured while “running across the street in the course of a delivery trip to buy a little food . . . crossing the street during a beer break to retrieve one’s lunch . . . crossing the road during a delivery trip to have a glass of beer at 2:00 in the afternoon [or] to get a newspaper . ...” 1 A. Larson & L. Larson, supra, § 19.63, pp. 4-523 through 4-525.