text:
    Jan Cohen et al. v. Security Title and Guaranty Company
    (13662)
    Peters, C. J., Healey, Callahan, Covello and Hull, Js.
    Argued May 4
    decision released August 8, 1989

      Benson A. Snaider, with whom, on the brief, was Britta Schneider, for the appellants (plaintiff Stephen Harney et al.).

      Jeffrey J. Mirman, with whom was Peter Schwartz, for the appellee (defendant).
   Covello, J.

The plaintiffs brought this action to the Superior Court to recover for damages allegedly sustained when the defendant, Security Title and Guaranty Company, denied their claim for loss under its title insurance policy. The trial court, Hodgson, J., concluded that the plaintiffs did not suffer any loss within the meaning of the policy and consequently found in favor of the defendant. The plaintiffs appealed to the Appellate Court from the trial court’s judgment and we thereafter transferred the case to ourselves pursuant to Practice Book § 4023.

The trial court found the following: On March 21, 1986, Harbor View Associates (Harbor View) entered into a contract of sale whereby they agreed to sell certain real property, known as Colonial Quadrangle, to the plaintiffs for $4,350,000. The property consisted of seventy-eight dwelling units at two locations. The seventy-eight units consisted of fifty-four units in attached townhouses on Riverside Drive in Clinton, twenty-one units in attached townhouses at 114-116 Commerce Street in Clinton, and three units in a three-family house also at the 114-116 Commerce Street location.

The day before the closing, the plaintiffs discovered that the legal description contained in the contract of sale, and in the proposed deed, included more property than the plaintiffs had intended to buy and the sellers had intended to sell. In addition to the condominium complex, the property as described contained a house lot and a single family dwelling not owned by the sellers that were located in the southwest corner of the rectangular property set out in the description (Carelli parcel).

At the closing on April 29, 1986, neither the plaintiffs nor their attorney mentioned the discovery of the inclusion of the Carelli parcel. Harbor View supplied the plaintiffs with a warranty deed that contained the same description of the property as appeared in the contract of sale.

By letter dated June 6, 1986, the plaintiffs notified the defendant that title to a portion of the property that it had insured was in fact held by Richard and Anita Carelli. The plaintiffs demanded “reimbursement for the loss of the said premises.” The defendant denied the claim.

The plaintiffs brought this action to the Superior Court. The plaintiffs’ amended complaint alleged: (1) a breach of contract; (2) a breach of an implied covenant of good faith; and (3) violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42a-110a et seq. The trial court found that the plaintiffs had failed to prove a loss, that they had suffered or agreed to accept a defective deed and that the title insurance policy should be reformed. The court further found that the defendant had not violated either CUTPA or the implied covenant of good faith.

The plaintiffs claim on appeal that the trial court erred in concluding (1) that they suffered no loss within the meaning of the title insurance policy, and (2) that they agreed to accept a defective deed from the sellers. We review these claims under the “clearly erroneous” standard enunciated in Practice Book § 4061 and find no error. See Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980).

The plaintiffs’ first claim is that the trial court erred in finding that they had suffered no loss or damage com-pensable under the insurance policy. The plaintiffs argue that a loss occurred when they failed to receive what had been promised to them in the contract of sale and what was warranted to have been conveyed to them by warranty deed, i.e., the Carelli property. We disagree.

The insurance policy issued to the plaintiffs excluded from coverage “[d]efects, liens, encumbrances, adverse claims, or other matters . . . resulting in no loss or damage to the insured claimant. ” (Emphasis added.) This exclusion reflects the fact that “[t]itle insurance is . . . an indemnity contract and as such it is to provide reimbursement for actual loss only. (Empire Development Co. v. Title Guarantee & Trust Co., 225 N.Y. 53 [121 N.E. 468 (1918)]; 15 Couch, Insurance [2d Ed.], § 57:179.)” (Emphasis added.) Grunberger v. Iseson, 75 App. Div. 2d 329, 331, 429 N.Y.S.2d 209 (1980). The plaintiffs suffered no loss or damage in this case.

As the trial court found, this is not a situation in which the plaintiffs received less property than they had intended to buy. The plaintiffs never considered the Carelli parcel to be included in the sale, they would have paid the same amount regardless of whether the Carelli property was included in the sale and they offered no evidence to suggest that the property actually sold to them had a value of less than the purchase price of $4,350,000. The plaintiffs received exactly what they had bargained for, i.e., seventy-eight dwelling units on two parcels of land for a price of $4,350,000. These facts found by the trial court were amply supported by the record. Therefore, the trial court was correct in concluding that the plaintiffs had suffered no compensable loss under the policy. See Malkin v. Realty Title Ins. Co., 244 Md. 112, 223 A.2d 155 (1966) (where purchasers understood that public road occupied part of property and elected to complete sale, purchasers cannot recover for loss); Aja v. Appleton, 86 Nev. 639, 472 P.2d 524 (1970) (where purchasers concede that they never intended to purchase parcel of land inadvertently described in deed, purchasers suffered no compensable loss).

The plaintiffs next claim that the trial court erred in concluding that the plaintiffs either suffered or agreed to receive a defective deed. They argue that they did not bring about or cause the circumstances that gave rise to the defect nor did they agree to or assume the defect. We disagree.

The insurance policy contains an exclusion for “[djefects, liens, encumbrances, adverse claims, or other matters . . . created, suffered, assumed or agreed to by the insured claimant. ” (Emphasis added.) Other courts have considered similar clauses and have held that this type of clause insulates the insurer from liability where the alleged loss resulted from the insured’s own intentional misconduct or inequitable dealings. See Taussig v. Chicago Title & Trust Co., 171 F.2d 553 (7th Cir. 1948); Conway v. Title Ins. Co., 291 Ala. 76, 277 So. 2d 890 (1973); Brick Realty Corporation v. Title Guarantee & Trust Co. 161 Misc. 296, 291 N.Y.S. 637 (1936). By failing timely to raise the issue of the discrepancy between the piece of land they intended to buy and the piece of land they in fact bought, the plaintiffs agreed to receive a defective deed.

The plaintiffs were well aware of the discrepancy between the two descriptions. Although they could have timely brought this problem to the attention of the sellers, they did not do so. The plaintiffs cannot now complain of the defect to which they acquiesced at closing. We agree with the trial court that this policy exclusion precludes the plaintiffs from recovering damages since they agreed to the defect of which they now complain.

There is no error.

In this opinion the other justices concurred.

       The plaintiffs at the trial were five partners, Jan Cohen, Arnold Foster, Mario DiRenzo, Stephen Harney and Robert Errato. Only two of the plaintiffs, Errato and Harney, have appealed from the trial court decision. On August 11,1988, the defendant moved to dismiss this appeal for lack of jurisdiction due to the absence in the appeal of indispensable parties. On November 3,1988, the Appellate Court denied this motion. The defendant now “renews its request that the Court dismiss the appeal because it lacks jurisdiction.” The defendant did not actually brief this claim but relies on the reasoning in its original motion. Because the defendant has failed to brief this issue adequately we will not consider it here. “ ‘ “Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court. Cheney v. Strasburger, 168 Conn. 135, 142, 357 A.2d 905 (1975); Maltbie, Conn. App. Proc. § 327; see Hartford National Bank & Trust Co. v. Tucker, 178 Conn. 472, 475, 423 A.2d 141 (1979).” ’ ” Aillon v. Meachum, 211 Conn. 352, 356 n.4, 559 A.2d 206 (1989).


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Cynthia Besade v. Interstate Security Services et al.
    (13689)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued June 14
    decision released August 8, 1989

      Richard S. Bartlett, for the appellants (named defendant et al.).

      Mark W. Oberlatz, with whom, on the brief, was Matthew Shafner, for the appellee (plaintiff).
   Peters, C. J.

The central issue in this appeal is the validity of a workers’ compensation commissioner’s award issued over three and one-half years after the close of the hearings. The commissioner concluded that the plaintiff, Cynthia Besade, was entitled to workers’ compensation benefits because her disability was causally related to an injury she had received while employed by the defendant Interstate Security Services (ISS). After the commissioner denied their motion to open, the defendants appealed to the workers’ compensation review division (review division), which affirmed the award. They then appealed to the Appellate Court and we transferred the appeal to ourselves pursuant to Practice Book § 4023. We find no error.

The facts relevant to this appeal are as follows. On December 5, 1980, while employed by ISS, the plaintiff suffered a compensable injury when she inhaled ammonia fumes. She experienced coughing, difficulty in breathing and chest tightness and was taken to Lawrence and Memorial Hospital by ambulance. She continued to suffer recurrent pain, fever and gastrointestinal distress after her discharge from the hospital. In the spring of 1981, she experienced pain in her jaw, joints and bones, accompanied by swelling of her lymph nodes, which was diagnosed as mononucleosis. Subsequently, she experienced increased headaches and her doctor referred her to a dentist who concluded that she suffered from temporomandibular joint dysfunction.

ISS paid the plaintiff workers’ compensation until March 20, 1983, when the commissioner approved its notice of intention to discontinue payments. The plaintiff contested the approval and the commissioner held a formal hearing, which closed on September 19,1983. On April 29, 1987, the commissioner issued his finding and award, which held that the plaintiff’s disability, temporomandibular joint dysfunction, was causally related to her compensable injury, and, therefore, was compensable. After a denial of the defendants’ subsequent motion to open, they appealed to the review division which, on January 13, 1989, affirmed the commissioner’s decision in all respects, but limited his finding and award “to the situation prior to and up to September 19, 1983.” The review division remanded the case for further hearings “to address the situation thereafter.”

On appeal the defendants claim that the review division erred in affirming the commissioner’s award because the plaintiff had not established by a preponderance of the evidence that her temporomandibular joint dysfunction was causally related to her inhalation of ammonia fumes and because the lengthy delay in rendering his decision denied the defendants due process. The defendants also claim that the commissioner should have granted their motion to open the award. These claims are unpersuasive.

I

Before addressing the defendants’ claims, we must determine whether this appeal is properly before this court. This appeal bears some similarity to Matey v. Estate of Dember, 210 Conn. 626, 556 A.2d 599 (1989), a workers’ compensation case, in which we held that the appeal was premature because we concluded that the review division, in remanding the case for further evidentiary proceedings to determine the appropriate compensation rate, had not rendered a final judgment. The present appeal, however, is not premature. We conclude that the award was a final judgment as to the plaintiff’s entitlement to workers’ compensation benefits through September 19, 1983, the date of the last hearing, because the award contained a finding of the amount due through that date and the review division limited its remand to a determination of the plaintiff’s entitlement to benefits after that date.

Pursuant to General Statutes § 31-315, a workers’ compensation award is always limited to a claimant’s current condition and always subject to later modification upon the request of either party during the entire period of compensation if the complainant’s condition changes. Accordingly, any workers’ compensation award, although a final judgment as to benefits through the date of the hearing, is always subject to further proceedings, such as those ordered in the present case, to determine whether the award should be modified. If such an award were not a final judgment because it was subject to such modification, no workers’ compensation award could ever be final, and therefore appeala-ble, until the claimant either died or recovered, thereby ending the disability period.

Awards under other statutes that provide for subsequent modification in the event of changed circumstances have been viewed as final judgments for purposes of appeal. For example, General Statutes § 46b-86 (a), permits modification of orders for the periodic payment of permanent alimony or support, and General Statutes § 46b-56 permits modification of orders concerning child custody and visitation. Nonetheless, alimony, support, custody and visitation orders have routinely been treated as final judgments for purposes of an appeal. See, e.g., Blake v. Blake, 211 Conn. 485, 560 A.2d 396 (1989); Perez v. Perez, 212 Conn. 63, 561 A.2d 907 (1989). We conclude, therefore, that the workers’ compensation award in this case is a final judgment that is presently appealable.

II

With respect to the merits of their appeal, the defendants first contend that the review division erred in upholding the commissioner’s award because the plaintiff failed to prove that her disability was causally related to her injury at work. This claim of error has two parts: (1) that the review division erred procedurally by employing an improper standard in reviewing the findings of the commissioner; and (2) that the review division erred substantively in its conclusion about the required causal relationship.

The decision of the review division on the causal relationship between the plaintiff’s injury and her present temporomandibular condition relied on the record created in the hearing before the commissioner. At that hearing, the commissioner received two reports from Mark R. Cullen, M.D., which stated his belief that the plaintiff’s exposure to ammonia fumes had caused her to have mononucleosis and swollen lymph glands, which in turn contributed to her temporomandibular joint dysfunction. The commissioner also received the testimony of I. L. Cantner II, D.M.D., who gave his opinion that the plaintiffs “signs and symptoms currently relate to the disease entity, which apparently relates to the industrial [exposure to ammonia fumes].” The commissioner also received further evidence, some of which contradicted the clinical opinions of the plaintiffs expert witnesses.

In its appraisal of this record, the review division concluded that the record supported the commissioner’s finding that the plaintiff’s temporomandibular joint dysfunction was work related. The review division took the view that, as an appellate tribunal, it should not interfere with the trier’s factual findings “when . . . evidence exists to support them.”

The defendants claim that the review division should not have deferred to the commissioner as fact finder, because the evidence before the commissioner was largely documentary, including medical reports and depositions. To the extent that the commissioner’s assessment of the evidence before him did not rest on a personal appraisal of the demeanor and credibility of the witnesses before him, they urge us to hold that such deference is inappropriate and to engage in a broader appellate scrutiny. We are unpersuaded.

In Fair v. People’s Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988), we construed General Statutes § 31-301 (a) and Regulations of Connecticut State Agencies § 31-301-8 to require the review division “to hear the appeal on the record and not ‘retry the facts.’ ” See Castro v. Viera, 207 Conn. 420, 440, 541 A.2d 1216 (1988). It is the commissioner who has the power and the duty to determine the facts; Adzima v. UAC/Norden Division, 177 Conn. 107, 118, 411 A.2d 924 (1979); and the review division may take evidence in addition to that certified to it by the commissioner only if good reason exists why the evidence was not presented to the commissioner. Fair v. People’s Savings Bank, supra. “ ‘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.’ ” Id., quoting A dzima v. UAC/Norden Division, supra, 117-18; Mathurin v. Putnam, 136 Conn. 361, 366, 71 A.2d 599 (1950).

The defendants’ argument cannot be reconciled with the holdings of these precedents. We have not heretofore distinguished between documentary and testimonial evidence in defining the role of appellate tribunals in reviewing findings of fact; see, e.g., Connecticut Bank & Trust Co. v. Wilcox, 201 Conn. 570, 576, 518 A.2d 928 (1986); Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981); DiLieto v. Better Homes Insulation Co., 16 Conn. App. 100, 104, 546 A.2d 957 (1988); and we are not prepared to introduce such a distinction into administrative proceedings.

Since the correct standard, as the review division held, is one of review on the record, we find no error in its conclusion that the evidence provided by Cant-ner and Cullen provided a tenable basis for the commissioner’s finding that the plaintiff’s condition at the time of the hearing was causally related to her inhalation of ammonia fumes while employed. See McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 118, 527 A.2d 664 (1987) (traditional proximate cause concepts furnish the appropriate analysis for determining causation in workers’ compensation cases). These experts linked the plaintiff’s exposure to ammonia fumes to swollen lymph glands resulting from mononucleosis, and linked her temporomandibular joint dysfunction to the swelling of her lymph glands. The defendants cannot prevail on this claim of error.

Ill

The defendants next claim that the review division erred in upholding the commissioner’s award because the three and one-half year interval between the hearings and the award violated their right to due process. Although we do not condone the delay that occurred in this case, the defendants cannot overturn an adverse award on this ground unless they can demonstrate that they have been prejudiced. In our view, they have failed to make such a showing.

The general rule is that, absent a violation of a specific statutory provision, delay in civil proceedings does not necessitate a new trial without a showing of prejudice. Even in criminal prosecutions, an impairment of a defendant’s constitutional and statutory rights to a speedy trial does not mandate automatic dismissal of the charges, but rather triggers a balancing test, the most important factor of which is prejudice to the defendant; Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); State v. Herring, 210 Conn. 78, 89, 554 A.2d 686 (1989); see also Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 243 n.6, 558 A.2d 986 (1989). A fortiori, delay in the rendering of a civil award does not automatically make the award invalid or mandate a rehearing.

Recognizing that prejudice is the linchpin to this claim of error, the defendants claim that the commissioner’s delay injured them in two respects. Neither one persuades us.

The defendants first allege that they were prejudiced because they are “faced with a gap of 3 1/2 years without any medical evidence serving to document what the [plaintiff’s] disability status was, yet they have been ordered to pay her benefits until her disability ceases or diminishes.” This allegation is without merit. The review division, having concluded that the plaintiff’s entitlement to benefits had been determined only through the date of the hearings, remanded the case for further hearings to determine the plaintiff’s entitlement to benefits after that date, i.e., during “the gap.” There is, therefore, no order that the defendants make any payments based upon the plaintiff’s medical condition during “the gap.”

The defendants’ other allegation of prejudice hypothesizes that because of the interval occasioned by the delay and the complexity of the issues involved, the commissioner could not have retained an accurate memory for their witnesses’ testimony and thus must have failed to give adequate weight to their testimony in making his findings. The defendants acknowledge that the commissioner might have taken notes at the time of the hearings, but they emphasize that he did not have a transcript of the testimony of their witnesses. They therefore conclude that the commissioner relied exclusively on the plaintiff’s documentary and deposition evidence, in derogation of his duty to weigh all the evidence that he would have recalled had the award been prepared earlier. These speculations find no support in the record. The award does not indicate that the delay in its preparation in any way interfered with the commissioner’s ability to recollect accurately all the evidence that was presented to him. The defendants have, therefore, failed to demonstrate that the delay prejudiced them in any way.

IV

The defendants’ final claim is that the review division erred in affirming the commissioner’s denial of their motion to open the award. They contend that reports from Casper Burke, a dentist who treats temporomandibular joint dysfunction, constitute new evidence such that the commissioner should have opened the award. We disagree.

As the defendants acknowledge, Asherman v. State, 202 Conn. 429, 521 A.2d 578 (1987), sets forth the standard that governs a motion for a new trial based upon newly discovered evidence. “The petitioner must demonstrate, by a preponderance of the evidence, that: (1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial.” Id., 434. “This strict standard is meant to effectuate the underlying ‘equitable principle that once a judgment is rendered it is to be considered final,’ and should not be disturbed by posttrial motions except for a compelling reason.” Id., quoting Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn 707, 713, 462 A.2d 1037 (1983). The defendants cannot meet this standard.

In order to prevail on the denial of their motion for the opening of the award, the defendants must demonstrate an abuse of discretion on the part of the commissioner. Metall v. Aluminum Co. of America, 154 Conn. 48, 53, 221 A.2d 260 (1966); Meadow v. Winchester Repeating Arms Co., 134 Conn. 269, 274, 57 A.2d 138 (1948). It is their burden to show that there is new evidence that is likely to produce a different result. Metall v. Aluminum Co. of America, supra; see Meadow v. Winchester Repeating Arms Co., supra.

The review division concluded that Burke’s testimony would be cumulative and affirmed the commissioner’s decision not to open the award, stating that “[u]nder the circumstances, given the limited role of an appellate tribunal, we cannot say the trier’s ruling in the matter was unreasonable or an abuse of discretion.” We agree. Burke’s statements regarding the causation of the plaintiff’s temporomandibular joint dysfunction was cumulative of the testimony of the defendants’ expert witnesses before the commissioner, which conflicted with that of the plaintiff’s experts. Further, the commissioner rendered his award based upon the record, which closed on September 19, 1983, and covers the plaintiff’s condition until that date only. Burke’s reports, however, are dated July 2,1986, January 27, 1987, and October 7,1987, long after the hearings were concluded and the record was closed.

Under these circumstances, we conclude that the defendants have failed to demonstrate that the commissioner abused his discretion in refusing to open the hearing. We note, in addition, that although the causation of the plaintiff’s temporomandibular joint dysfunction is no longer at issue, the defendants now have the opportunity to have Burke’s reports considered in determining the plaintiff’s condition in the period subsequent to the close of the hearings.

There is no error.

In this opinion the other justices concurred.

       Interstate Security Services and its insurance company, Crawford and Company, were joined by the state treasurer, as custodian of the Second Injury and Compensation Assurance Fund, in the appeal to the workers’ compensation review division. The review division dismissed the state treasurer’s appeal, which dismissal has not been appealed. Accordingly, references to the defendants henceforth refer only to ISS and Crawford and Company.

       The defendants raised virtually identical claims before the review division, which addressed each of their claims. They claimed that the commissioner had made evidentiary errors, that the long delay between the close of the hearings and the award constituted denial of due process and that their motion to open should have been granted.

       General Statutes § 31-315 provides: “Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter shall be subject to modification, upon the request of either party and in accordance with the procedure for original determinations, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that conditions of fact have arisen which necessitate a change of such agreement or award in order to properly carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.”

       General Statutes § 46b-86 (a) provides in relevant part: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party.”

       General Statutes § 46b-56 provides in relevant part: “[T]he court may at any time make or modify any proper order regarding the education and support of the children and of care, custody and visitation . . . . ”

       The defendants agree that the plaintiff suffered a compensable injury when she inhaled ammonia fumes at work, but allege that her temporoman-dibular joint dysfunction is not causually related to that injury.

         The award states that, at the time of the hearing, the plaintiff was “suffering from discomfort in the jaw, swelling of the lymph nodes, asthmatic reaction to dust and fumes, headaches, gastrointestinal problems, difficulty eating hard foods, and fatigue. She experienced some days when these symptoms became so intense that she had difficulty carrying on the normal activities of daily life.” “It is found that claimant suffered an injury which arose during and out of the course of her employment.... It is further found that she was totally disabled from work as a result of said exposure which caused respiratory problems, i.e. bronchitis and pneumonia; as a further result of said exposure claimant contracted mononucleosis which in turn caused swelling of the lymph glands on the neck, i.e. cervical adnopathy, which ultimately resulted in [temporomandibular] joint dysfunction.”

       Mark R. Cullen, M.D., on August 25, 1982, wrote: “While infectious mononucleosis is not an occupational illness in its own right, I believe it does represent an infectious complication of her underlying airway problem.” On February 2,1983, he stated that the plaintiff “developed a rather typical case of mononucleosis with first development of lymphadenopathy and fever in the summer or late spring of 1981. ... I believe that some of the stimulus for her temporomandibular [joint] dysfunction must be related to her recurrent adenopathy on the left side.”

       The testimony of I. L. Cantner II, D.M.D., included in relevant part: “I feel that there’s a likelihood that [the temporomandibular joint dysfunction] was caused by an indirect route from the lymphadenopathy, or recurrent lym-phadenopathy, occurring in [this] case. . . .There’s a possibility, let me state, that this has occurred or was present for many years, and that the signs and symptoms of the case have only been severely aggravated or precipitated by the lymphadenopathy caused by the . . . apparent industrial accident. Therefore, in either case I think her signs and symptoms currently relate to the disease entity, which apparently relates to the industrial—the disease entity of the recurrent lymphadenopathy .... Through the reports that I got from Dr. Cullen, it was directly apparent that he diagnosed [the swelling of the lymph nodes] as due to the exposure of a chemical which was inhaled in an industrial accident causing the lymphadenopathy and recurrent mononucleosis, or recurrent swelling of the nodes. . . . The swollen lymph glands can cause significant pain in the cervical musculature. This pain can cause spasms of the posterior extension head movement. Then via afferent central nervous system input in the cervical musculature you develop reflex adaption of an anterior head posture. . . . You then get muscle bracing, spasm of the muscles, stomatognathic muscles, and finally [temporomandibular] joint dysfunction and pain.”

       General Statutes § 31-301 (a) provides in pertinent part: "The compensation review division shall hear the appeal on the record of the hearing before the commissioner, provided, if it is shown to the satisfaction of the division that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, the compensation review division may hear additional evidence or testimony.”

       Regulations of Connecticut State Agencies § 31-301-8 provides: “function of compensation review division. Ordinarily, appeals are heard by the compensation review division upon the certified copy of the record filed by the commissioner. In such cases the division will not retry the facts or hear evidence. It considers no evidence other than that certified to it by the commissioner, and then for the limited purpose of determining whether the finding should be corrected, or whether there was any evidence to support in law the conclusion reached. It cannot review the conclusions of the commissioner when these depend upon the weight of the evidence and the credibility of witnesses. Its power in the corrections of the finding of the commissioner is analogous to, and its method of correcting the finding similar to the power and method of the Supreme Court in correcting the findings of the trial court.”

       We note, furthermore, that the record in this case was not wholly documentary. The defendants’ medical experts, Michael M. Conway, a lung specialist, and Lester L. Luntz, a dentist, testified at the hearings. The plaintiff also testified.

       The defendants originally alleged that the award was governed by, and in violation of, General Statutes § 31-300, which provides that “[a]s soon as may be after the conclusion of any hearing, but no later than one hundred twenty days after such conclusion, the commissioner shall send to each party a written copy of his award.” They agreed at oral argument, however, that, because the hearing occurred before the effective date of the amendment that added the 120 day provision; Public Acts 1985, No. 85-64; this case is governed by § 31-300 (Rev. to 1985), which contained no explicit time constraints specifying when the commissioner must render the award.

       To the contrary, the delay has incidentally benefited them. The defendants were able to postpone paying the benefits due to the plaintiff until after the three and one-half year delay and, pending the outcome of this appeal, have not, as yet, been required to make such payments. It appears, therefore, that if any party suffered from the delay, it was the plaintiff.

       The plaintiff consulted Burke regarding surgery to correct her temporomandibular joint dysfunction.

       On July 2, 1986, Burke stated: “The history of this patient's tem-poromandibular joint condition does not appear to be related to the incident . . . . ” On January 27,1987, however, he stated: “Although I cannot state the pre-existing condition of her temporomandibular joints prior to the exposure, I can state that the exposure to the ammonia fumes and the subsequent vomiting and severe coughing episodes can be either the primary cause of her present condition or severely aggravated a previously asymptomatic condition.”


author: Callahan, J.

text:
    Stop ’N Save, Inc., et al. v. Department of Revenue Services
    (13673)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.
    Argued June 9
    decision released August 8, 1989

      AlanM. Kosloff, with whom, on the brief, was Meryl Spat, legal intern, for the appellants (plaintiffs).

      Jonathon L. Ensign, assistant attorney general, with whom were Richard K. Greenberg, assistant attorney general, and, on the brief, Clarine Nardi Riddle, acting attorney general, and Carl J. Schuman, assistant attorney general, for the appellee (defendant).
   Callahan, J.

This is an appeal by Stop ’N Save, Inc., and Waterbury Public Markets, Inc. (taxpayers), from a decision of the Superior Court dismissing their appeal from the assessment of sales and use taxes by the department of revenue services (department) for the period June 1, 1982, through May 31,1985. The sales and use taxes in question were assessed against the taxpayers for machinery used in the production of baked goods at their in-store bakeries. The taxpayers disputed the department’s assessments against them claiming that the machinery assessed was exempt from sales and use taxes under General Statutes § 12-412 (34) because, it was used directly in a “manufacturing production process.” After a hearing, the department refused to revise its assessment and the taxpayers appealed to the Superior Court pursuant to § 12-422. The Superior Court dismissed the taxpayers’ appeal and the taxpayers subsequently appealed to the Appellate Court. We transferred the appeal to this court pursuant to Practice Book § 4023.

The facts are not in dispute. The taxpayers are supermarkets engaged in the retail sale of food products at various locations in Connecticut. At several of these locations, the taxpayers own and operate bakeries on the premises that produce baked goods for retail sale over the counter to the general public. The taxpayers’ bakery operations are carried on in discrete areas of their supermarkets. The machinery upon which the commissioner levied an assessment is utilized solely to mix and bake the ingredients necessary to produce bakery products suitable for sale.

A relatively small portion of the taxpayers’ store area and resources is devoted to the production and sale of bakery products. Only 2 to 2.5 percent of the taxpayers’ total sales, 3.5 percent of employees’ hours, 3.1 percent of the total number of employees, 4.4 percent of floor space and 2.6 percent of the taxpayers’ total costs are attributable to their in-store bakery operations.

In correspondence with the taxpayers, the department stated that it refused to revise the assessment against them because “an establishment [in order to qualify for an exemption under § 12-412 (34)] must have manufacturing as its main purpose and be generally recognized to be an industrial plant.” The department went on to note that the “baking of the products on the premises does not change the primary purpose of the store as a retail establishment to that of an industrial plant. The manufacturing aspect of the baking is incidental to the retail characteristics and, as a consequence, such establishment is not eligible for exemption.”

The Superior Court, in dismissing the taxpayers’ appeal, agreed with the department and concluded that “the baking of the products on the premises does not change the primary purpose of the store as a retail establishment to that of an industrial plant.” We find no error.

General Statutes § 12-412 (34) provides an exemption from sales and use taxes for the “[s]ales of and the storage, use or other consumption of machinery used directly in a manufacturing or agricultural production process.” (Emphasis added.) Further, § 12-426-l.lb (b) (3) of the Regulations of Connecticut State Agencies provides that “[t]he [sales and use] tax does not apply to sales of and the storage, use or other consumption in this state of machinery used in a manufacturing production process . . . . ” (Emphasis added.) If, therefore, the taxpayers’ bakery operations fit within the definition of a “manufacturing production process,” any machinery used in that process would be exempt from sales and use taxes.

Section 12-426-llb (a) (ll) of the Regulations of Connecticut State Agencies provides that a “ ‘[m]anufacturing production process’ shall mean any one of a series of production activities, beginning with the movement of the raw materials after their receipt, inspection and storage, to the first production machine and ending with the completion of the finished product, including any packaging operations, for its sale to the ultimate consumer. . . . ‘Manufacturing production process’ shall occur solely at an industrial plant.” (Emphasis added.) The department concedes that the process by which the taxpayers convert raw materials into finished baked goods is “one of a series of production activities.” The department argues, however, that because the taxpayers’ activities take place at a supermarket and not at an “industrial plant,” the taxpayers are not engaged in a “manufacturing production process” within the meaning of the regulations. We agree.

An “industrial plant” is defined in the Regulations of Connecticut State Agencies, § 12-426-llb (a) (7) as “a manufacturing facility at which a manufacturing production process is occurring. ...” (Emphasis added.) The question to be resolved, therefore, is whether the taxpayers’ supermarkets containing on-premise bakeries are “manufacturing facilities]” and, therefore, “industrial plant[s]” in which a “manufacturing production process is occurring.” If they are, the machinery purchased for use in the taxpayers’ bakeries is exempt from the imposition of sales and use taxes. General Statutes § 12-412 (34).

The taxpayers first argue that the department and the trial court applied a regulation repealed in 1980 in order to determine that their supermarkets were not “industrial plants” and therefore did not qualify for an exemption under § 12-412 (34). The taxpayers claim that because the repealed regulation, the former § 12-426-11 (g), embodied a “primary purpose test” to determine whether an establishment was an “industrial plant,” its repeal was conclusive evidence that that test was abrogated and could not be used by the department or the trial court to arrive at their respective decisions. After its repeal, § 12-426-11 (g) was replaced by § 12-426-llb (a) (7). As previously noted, § 12-426-llb (a) (7) defines an “industrial plant” as a “manufacturing facility at which a manufacturing process is occurring.” The term “manufacturing facility” in the regulation is not further defined in either the statutes or the regulations. That term, therefore, was required to be interpreted by the trial court to effect a resolution of this case.

We see no reason why, in interpreting the present regulation, the trial court could not have ascribed to the term “manufacturing facility” its ordinary meaning and commonly approved usage. Connecticut Water Co. v. Barboto, 206 Conn. 387, 345, 537 A.2d 490 (1988); Kilpatrick v. Board of Education, 206 Conn. 25, 28, 535 A.2d 1311 (1988); Federal Aviation Administration v. Administrator, 196 Conn. 546, 550, 494 A.2d 564 (1985). The application of that meaning, we conclude, would have required the trial court, as it does this court, to arrive at a result contrary to that espoused by the taxpayers. Indisputably, the ordinary meaning of the term “manufacturing facility” connotes a place where manufacturing is carried on either primarily or exclusively. No disinterested observer would think of a supermarket, containing a bakery section occupying a minute portion of its premises, as a “manufacturing facility” or an “industrial plant.” Further, if the taxpayers were to prevail in their contention that a “manufacturing facility” is any place where a manufacturing production process is carried on, it would render superfluous and meaningless the sentence in § 12-426-llb (a) (11), which states that a “ ‘[mjanufacturing production process’ shall occur solely at an industrial plant.” Harris Data Communications, Inc. v. Heffernan, 183 Conn. 194, 197, 438 A.2d 1178 (1981); Green v. Freedom of Information Commission, 178 Conn. 700, 703, 425 A.2d 122 (1979).

While § 12-426-11 (g) has been repealed, the absence of the word “primarily” from the present regulation does not signify a change in substance in the scope of the exemption. The present regulation continues to require machinery to be used in a “manufacturing production process” that must occur “solely at an industrial plant.” The repeal of § 12-426-11 (g) did not delete the word “primarily” from the English language, and absent some indication of legislative or agency intent to the contrary, if its use is appropriate as a component in formulating a reasonable interpretation of an undefined term in the current regulations we see no reason for its prohibition. There is no error in this regard.

The taxpayers next maintain that the interpretation of the term “manufacturing facility” by the department and the trial court to exclude the taxpayers’ supermarkets from an exemption constituted a “regulation” promulgated in violation of the Uniform Administrative Procedure Act and was therefore invalid. We disagree.

The ordinary meaning of the terms “manufacturing facility” and “industrial plant” as stated in the regulations renders it at least implicit, if not explicit, that those terms did not apply to supermarkets. Walker v. Commissioner, 187 Conn. 458, 460-61, 446 A.2d 822 (1982). Further, in defining those terms the department and the trial court, rather than promulgating a “regulation,” reasonably interpreted the existing regulations. It is clear that they have the authority to do so. Quin-nipiac Counsel, Boy Scouts of America, Inc. v. Commission on Human Rights & Opportunities, 204 Conn. 287, 293 n.5, 528 A.2d 352 (1987); Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 497, 512 A.2d 199 (1986); Connecticut Mobile Home Assn., Inc. v. Jensen’s, Inc., 178 Conn. 586, 589, 424 A.2d 285 (1979); Ouellet v. Shapiro, 3 Conn. Cir. Ct. 268, 272, 212 A.2d 708 (1965); 1 Am. Jur. 2d, Administrative Law § 186 and vol. 2, § 233. We find no merit to this claim of the taxpayers.

Finally, the taxpayers contend that at trial they clearly demonstrated that the department’s interpretation of the terms “industrial plant and manufacturing facility was unreasonable.” This claim requires no further discussion other than to note that any statute creating a tax exemption must “be strictly construed against the party claiming an exemption”; Caldor, Inc. v. Heffernan, 183 Conn. 566, 571, 440 A.2d 767 (1981); and that the taxpayers bore the burden of proving the assessment was in error. H. B. Sanson, Inc. v. Tax Commission, 187 Conn. 581, 586, 447 A.2d 12 (1982). They failed to sustain that burden.

There is no error.

In this opinion the other justices concurred.

       The appeal also protested the assessment of sales and use tax on “materials” used in the taxpayers’ bakeries. See General Statutes § 12-412 (18). In its brief, however, the department states that it levied an assessment of sales and use taxes only on “machinery.” See General Statutes § 12-412 (34). The exemption under § 12-412 (34) is therefore the only exemption at issue in this case.

       General Statutes § 12-412 (34) provides: “machinery used in manufacturing or agricultural production. Sales of and the storage, use or other consumption of machinery used directly in a manufacturing or agricultural production process. The word ‘machinery’ as used in this subsection means the basic machine itself, including all of its component parts and contrivances, such as belts, pulleys, shafts, moving parts, operating structures and all equipment or devices used or required to control, regulate or operate the machinery, but excluding office equipment or data processing equipment other than numerically controlled machinery used directly in the manufacturing process.”

       “[General Statutes] Sec. 12-422. appeal. Any taxpayer aggrieved because of any order, decision, determination or disallowance of the commissioner of revenue services under section 12-418,12-421 or 12-425 may, within one month after service upon the taxpayer of notice of such order, decision, determination or disallowance, take an appeal therefrom to the superior court for the judicial district of Hartford-New Britain, which shall be accompanied by a citation to the commissioner of revenue services 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 appellant a bond or recognizance to the state of Connecticut, with surety to prosecute the appeal to effect and to comply with the orders and decrees of the court in the premises. Such appeals shall be preferred cases, to be heard, unless cause appears to the contrary, at the first session, by the court or by a committee appointed by it. Said court may grant such relief .as may be equitable and, if such tax has been paid prior to the granting of such relief, may order the treasurer to pay the amount of such relief, with interest at the rate of six per cent per annum, to the aggrieved taxpayer. If the appeal has been taken without probable cause, the court may tax double or triple costs, as the case demands; and, upon all such appeals which are denied, costs may be taxed against the appellant at the discretion of the court, but no costs shall be taxed against the state.”

       A stipulation of facts was filed by the parties in the trial court.

       The Regulations of Connecticut State Agencies, § 12-426-llb (b) (3) provides: “The tax does not apply to sales of and the storage, use or other consumption in this state of machinery used in a manufacturing production process or an agricultural production process.”

       The Regulations of Connecticut State Agencies, § 12-426-llb (a) (11) provides: “ ‘Manufacturing production process’ shall mean any one of a series of production activities, beginning with the movement of the raw materials after their receipt, inspection and storage, to the first production machine and ending with the completion of the finished product, including any packaging operations, for its sale to the ultimate consumer. ‘Manufacturing production process’ shall not include any activities prior to the first production stage (such as collecting, weighing and storing raw materials) or any activities following the last production stage (such as casing, loading or delivering to the consumer). ‘Manufacturing production process’ shall occur solely at an industrial plant.”

       The Regulations of Connecticut State Agencies, § 12-426-llb (a) (7) provides: “ ‘Industrial plant’ shall mean a manufacturing facility at which a manufacturing production process is occurring. A quarry shall be considered to be an industrial plant to the extent that its product is sold.”

       The Regulations of Connecticut State Agencies, § 12-426-11 (g), since repealed, provided: “industrial plant. An ‘industrial plant’ shall mean an establishment primarily engaged in a process of manufacturing tangible personal property for sale in the regular course of business and generally recognized as such. For the purpose of this section ‘a quarry’ shall be considered an industrial plant to the extent the product is sold.”

       Further, it could lead to some ludicrous results. The definition of “manufacturing production process” standing alone without the requirement that it take place in an “industrial plant," could encompass cottage industries, i.e., the fabrication of products in the home.

       The taxpayers reliance on Ziperstein v. Tax Commissioner, 178 Conn. 493, 423 A.2d 129 (1979), is misplaced. In Ziperstein, this court upheld the trial court’s determination that the appellee was entitled to an exemption for electricity consumed in fabricating products on premises and sold at retail over-the-counter at a Dairy Queen outlet. Ziperstein, however, was decided under the repealed § 12-426-11 (g) of the Regulations of Connecticut State Agencies and the percentage of the appellees’ resources and space devoted to manufacturing its product in Ziperstein was much greater than that in the present case. Further, although we were unable to locate any legislative history, the timing (1980) indicates that the present regulation, § 12-426-llb (a) (7), was promulgated to make it more difficult for retail outlets to qualify for exemptions as industrial plants.


author: Hull, J.

text:
    Jeffrey S. Winslow v. Lewis-Shepard, Inc., et al.
    (13679)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.

      Argued June 13
    decision released August 8, 1989

      Robert B. Yules, with whom, on the brief, was Thomas H. Winslow, for the appellant (plaintiff).

      Christopher M. Vossler, for the appellees (named defendant et al.).
   Hull, J.

The sole issue on this appeal is whether our products liability statute, General Statutes § 52-572n (a), provides the exclusive remedy for a claim falling within its scope, thereby denying a claimant the option of bringing common law causes of action for the same claim. The trial court so held, and we find no error.

The procedural history of this appeal is undisputed. The plaintiff, Jeffrey S. Winslow, brought a multiple count complaint against the defendants Lewis-Shepard, Inc., Lewis-Boyle, Inc., Hyster Corporation and Esco Corporation, seeking a recovery for personal injuries that he sustained while operating an allegedly defective “order picker” at his place of employment. The plaintiffs complaint does not assert a statutory products liability claim pursuant to General Statutes § 52-572m et seq. Rather, the plaintiff pled the following common law causes of action against the defendants: first count, negligent design and manufacture of the order picker; third count, strict tort liability (i.e., that the defendants sold the order picker in a defective and unreasonably dangerous condition); fourth count, breach of express warranty of merchantability; and fifth count, breach of implied warranties of merchantability and fitness. The defendants filed a motion to strike these counts of the plaintiffs complaint, claiming that Connecticut’s products liability statute, General Statutes § 52-572n (a), provides the exclusive remedy for the plaintiff's products liability claim, thus rendering legally insufficient the common law theories asserted by the plaintiff. The plaintiff filed an objection to the motion to strike, claiming that § 52-572n (a) does not provide the exclusive remedy for products liability claims and that the language of that statute preserves a claimant’s right to plead traditional common law theories for injuries caused by an allegedly defective product. By an order dated November 3, 1988, the trial court granted the defendants’ motion to strike the first, third, fourth and fifth counts of the plaintiff’s complaint. Pursuant to the plaintiff’s motion for judgment dated November 17, 1988, judgment on the motion to strike was rendered in favor of the defendants on November 28,1988. From this judgment the plaintiff has appealed.

Section 52-572n (a) provides: “A product liability claim as provided in sections 52-240a, 52-240b, 52-572m to 52-572r, inclusive, and 52-577a may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product.” On appeal, the plaintiff renews his argument that § 52-572n (a) does not provide an exclusive remedy for products liability claims and that he is thereby permitted to plead common law theories of products liability. Specifically, the plaintiff claims that the inclusion in the statute of the “discretionary” language that “[a] product liability claim . . . may be asserted,” (emphasis added) rather than the mandatory phrase “shall be asserted,” clearly indicates that the legislature intended to grant a claimant the option of pursuing a products liability claim under either the statute or traditional common law theories. In response, the defendants argue: (1) the question of whether § 52-572n (a) provides an exclusive remedy for claims falling within its scope has already been answered in the affirmative by this court in the case of Daily v. New Britain Machine Co., 200 Conn. 562, 512 A.2d 893 (1986); (2) the plain language of § 52-572n (a) provides that it is an exclusive remedy; and (3) that if § 52-572n (a) is construed to be ambiguous on this point, its legislative history clearly demonstrates that it was intended to be an exclusive remedy.

We address first the defendants’ claim that the recent case of Daily v. New Britain Machine Co., supra, is dis-positive of the issue on this appeal. In Daily, the plaintiffs brought a statutory products liability action to recover for injuries resulting from the use of a molding machine more than ten years after its vendor had parted with possession and control thereof. The trial court granted the defendant vendor’s motion for summary judgment on the ground that the action was barred by General Statutes § 52-577a, the Connecticut products liability statute of limitations, since the defendant had parted with possession and control of the molding machine more than ten years before the plaintiffs had filed their action. On appeal, the plaintiffs in Daily claimed, inter alia, that their complaint alleged common law claims of products liability. Since § 52-577a acts to bar only untimely statutory products liability claims (brought pursuant to General Statutes § 52-572m et seq.), the plaintiffs argued that the trial court had erred in relying on § 52-577a to bar the common law products liability causes of action allegedly contained in their complaint.

The success of the plaintiffs’ argument in Daily depended on their ability to prove two things: first, that their complaint did indeed allege common law theories of products liability; and second, that a statutory products liability cause of action pursuant to § 52-572n (a) was not their exclusive remedy, thereby permitting common law causes of action to be pled. With regard to the plaintiffs’ assertion that their complaint alleged common law theories of product liability, we stated: “Our review of the substitute complaint dated November 23,1982, discloses that the plaintiffs alleged only violations of statutory enactments. . . . By choice, the plaintiffs limited their complaint to statutory claims. To attempt to read into this complaint common law claims is to stretch the imagination.” Id., 570-71. Clearly, this determination by the Daily court was dispositive of the plaintiffs’ claim, making it unnecessary for us to address the next issue of whether, if the plaintiffs’ complaint had alleged common law claims of products liability, those claims would be barred because § 52-572n (a) provided an exclusive remedy. Nevertheless, we chose to comment upon that issue, stating that “the products liability statute [§ 52-572n (a)] provides an exclusive remedy and the plaintiffs cannot bring a common law cause of action for a claim within the scope of the statute.” Id., 571. Because, however, this statement by the Daily court was not essential to the resolution of the particular issue presented, it is dictum and not fully authoritative. Rather than rely on this dictum, we prefer to engage in an independent statutory analysis of § 52-572n (a) in order to decide the important issue in this case.

Well established principles of statutory construction govern our analysis of § 52-572n (a). Our objective is to construe the language of the section so as to give effect to the apparent intent of the legislature. Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986); State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986); 2A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) § 45.05. “If the language of a statute is plain and unambiguous, we need not look beyond the statute because we assume that the language expresses the intention of the legislature. Rhodes v. Hartford, supra; Johnson v. Manson, 196 Conn. 309, 316, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986); Mazur v. Blum, 184 Conn. 116, 118-19, 441 A.2d 65 (1981). When we are faced with ambiguity in a statute, however, we turn for interpretive guidance to its legislative history, the circumstances surrounding its enactment, and the purpose the statute is to serve. Rhodes v. Hartford, supra; State v. Kozlowski, supra; State v. Ellis, 197 Conn. 436, 445, 497 A.2d 974 (1985).” State v. Blasko, 202 Conn. 541, 553, 522 A.2d 753 (1987).

Both parties contend that the plain language of § 52-572n (a) supports their respective positions. The plaintiff emphasizes the statutory language that “[a] product liability claim . . . may be asserted” as expressing an intent on the part of the legislature to grant a claimant the choice of pursuing a products liability claim under the statute but not mandating such a course of action, thereby implicitly preserving a claimant’s right to bring such an action under traditional common law theories. The defendants, on the other hand, point to the language in the statute stating that “[a] product liability claim . . . shall be in lieu of all other claims” as clearly indicating the legislature’s intent to make the statute the exclusive remedy for products liability actions falling within its scope. After careful scrutiny of the language of § 52-572n (a), we conclude that the express language of the statute is reasonably susceptible to either interpretation proffered by the parties. Faced with this ambiguity, we must look beyond the words of the statute to determine the intent of the legislature. State v. Blasko, supra, 554; State v. Kozlowski, supra, 674; see 2A J. Sutherland, supra, § 46.07, p. 110. Accordingly, we turn to the legislative history of our products liability act.

The comments of the sponsors of the act are enlightening, to an extraordinary degree, on the question of whether it was intended to be the exclusive remedy for those persons injured by an allegedly defective product. “[T]he bill is based upon a Department of Commerce draft in the area of product liability .... At the present time as you know, if you bring an action for a defective product, it’s frequently brought based upon [warranty], based upon negligence and based upon strict liability. . . . [The bill provides for] a single cause of action. It eliminates the complex pleading which we presently have involving, as I said, [warranty] and strict liability and negligence.” 22 H.R. Proc., Pt. 20, 1979 Sess., pp. 7021-22, remarks of Representative John A. Berman. Representative Berman commented further that “[w]e are now going with a single product liability cause of action. [Formerly] we had a concept of strict liability. We had negligence and we had [warranty] causes and suits were brought in at least three different [counts] and frequently more. So now we are going with one single product liability cause of action.” Id., pp. 7286-87.

Senator Salvatore C. DePiano made the following remarks about the proposed act: “Section 2 sets forth that the Bill is intended as a substitute for prior theories for harm caused by a product. This section is intended to cut down on the number of counts in a complaint for injuries caused by a product. . . . Section 3 sets forth time limits for bringing a products liability claim while previously there were varying time limits depending on the theory of liability. This simplifies those limits by establishing one primary time limit.” 22 S. Proc., Pt. 14, 1979 Sess., pp. 4636-37. Even more persuasive are the following comments of Senator DePiano made in response to a question concerning the effect of the new act on case law in the area of products liability: “I wouldn’t say we would be abolishing all case law, what we’re really abolishing is the various causes of action that have been brought in cases which we normally would call products liability cases. For example, the theory of strict liability, warranty, negligence and contract . . . would all be now merged into one cause of action which has been created by statute.” Id., p. 4639. In response to a question regarding the statutory definition of a products liability claim, Senator DePiano reiterated that “it’s definitely the intention to create a products liability cause of action and . . . to abolish all the various other types of actions that we’ve been using to date and that’s what we referred to in my statement that we’re doing away with the multiple count [complaint] that usually takes place in this kind of a law suit. That is counts dealing with negligence, with breach of contract, with warranty and with strict liability.” Id.

This legislative history is unequivocal as it pertains to the issue before us and no further elaboration is necessary. The legislature clearly intended to make our products liability act an exclusive remedy for claims falling within its scope. Accordingly, we conclude that the trial court acted correctly in granting the defendants’ motion to strike the common law counts of products liability from the plaintiff’s complaint on the basis that our products liability act provides the exclusive remedy for such claims.

There is no error.

In this opinion the other justices concurred.

         The plaintiff alleges that the defendant Lewis-Shepard, Inc., was the designer, manufacturer, distributor and seller of the order picker, which the plaintiff claims was manufactured in the early 1960s. The defendants Lewis-Boyle, Inc., and Hyster Corporation are the alleged successors to Lewis-Shepard, Inc. The defendant Esco Corporation is the alleged parent corporation of Hyster Corporation.

       An “order picker” can best be described as a miniature forklift.

       The plaintiff states that he chose not to assert a statutory products liability claim against the defendants because such a claim would have been barred by subsection (a) of General Statutes § 52-577a, the products liability act statute of limitations. See footnote 5, infra.

       General Statues § 52-572n (a) provides: “A product liability claim as provided in sections 52-240a, 52-240b, 52-572m to 52-572r, inclusive, and 52-577a may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product.”

       “[General Statutes] Sec. 52-577a. limitation of action based on product liability claim, (a) No product liability claim as defined in section 52-572m shall be brought but within three years from the date when the injury, death or property damage is first sustained or discovered or in the exercise of reasonable care should have been discovered except that, subject to subsections (c), (d) and (e), no such action may be brought against any party nor may any party be impleaded pursuant to subsection (b) later than ten years from the date that the party last parted with possession or control of the product.
      “(b) In any such action a product seller may implead any third party who is or may be liable for all or part of the claimant’s claim, if such third party defendant is served with the third party complaint within one year from the date the cause of action brought under subsection (a) of this section is returned to court.
      “(c) The ten-year limitation provided for in subsection (a) shall not apply to any product liability claim brought by a claimant who is not entitled to compensation under chapter 568, provided the claimant can prove that the harm occurred during the useful safe life of the product. In determining whether a product’s useful safe life has expired, the trier of fact may consider among other factors: (1) The effect on the product of wear and tear or deterioration from natural causes; (2) the effect of climatic and other local conditions in which the product was used; (3) the policy of the user and similar users as to repairs, renewals and replacements; (4) representations, instructions and warnings made by the product seller about the useful safe life of the product; and (5) any modification or alteration of the product by a user or third party.
      “(d) The ten-year limitation provided for in subsection (a) shall be extended pursuant to the terms of any express written warranty that the product can be used for a period longer than ten years, and shall not preclude any action against a product seller who intentionally misrepresents a product or fraudulently conceals information about it, provided the misrepresentation or fraudulent concealment was the proximate cause of harm of the claimant.
      “(e) The ten-year limitation provided for in subsection (a) shall not apply to any product liability claim, whenever brought, involving injury, death or property damage caused by contact with or exposure to asbestos, except that no such action may be brought by the claimant later than thirty years from the date that the claimant last had contact with or exposure to asbestos.
      “(f) The definitions contained in section 52-572m shall apply to this section.
      “(g) The provisions of this section shall apply to all product liability claims brought on or after October 1, 1979.”

       We recognize that the dictum in Daily v. New Britain Machine Co., 200 Conn. 562, 512 A.2d 893 (1986), that our products liability statute, General Statutes § 52-572n (a), provides an exclusive remedy, has been cited in a subsequent case. See Arsenault v. Pa-Ted Spring Co., 203 Conn. 156, 158, 523 A.2d 1283 (1987). The Arsenault court’s acknowledgment of the dictum in Daily, however, did not in our view establish a rule of law.


author: Shea, J.

text:
    Richard E. Blaker et al. v. Planning and Zoning Commission of the Town of Fairfield et al.
    (13564)
    (13565)
    Peters, C. J., Healey, Shea, Glass and Hull, Js.

      Argued May 10
    decision released August 8, 1989

      John J. Darcy, for the appellant in the first case (plaintiff Edward A. Jennings).

      AaronB. Schless, for the appellants in the second case (plaintiff Dennis R. Andrasi et al.).

      Matthew B. Woods, for the appellee in both cases (defendant Baker-Firestone Limited Partnership).
   Shea, J.

The dispositive issue in these appeals is what effect an applicant’s submission of ex parte evidence to a planning and zoning commission has upon an aggrieved party’s burden to demonstrate, in an appeal to the Superior Court, that the commission acted illegally. We conclude that the applicant’s ex parte communication relieved the aggrieved party of the initial burden of demonstrating that the commission acted illegally and shifted the initial burden to the applicant to demonstrate that the communication was harmless.

On November 11, 1986, the defendant Baker-Firestone Limited Partnership (Baker-Firestone) applied to the defendant Fairfield town plan and zoning commission (commission) for both a change of zone and a special permit for construction of multifamily condominium units. The land involved consisted of approximately 19.65 acres in the Southport section of Fairfield. Through the change of zone, Baker-Firestone sought the establishment of a “Designed Residence District #1” on land that was then zoned for single family dwellings on half acre and one acre parcels. Baker-Firestone simultaneously applied for a special permit to allow the construction of eighty-nine condominium units on the parcel of land.

The commission held public hearings on Baker-Firestone’s applications on January 13, 1987, January 27,1987, and February 24,1987. At the January 13 public meeting, Aaron Schless, the attorney for a group of opponents to Baker-Firestone’s applications, presented the commission with a protest petition, which, if valid, would have required the commission to approve the application for a zone change by a “vote of two-thirds of all the members of the commission.” General Statutes § 8-3 (b).

On February 2,1987, James Wendt, a town planner, prepared an analysis of the petition submitted by the opponents of Baker-Firestone’s applications. According to Wendt’s calculations, more than 20 percent of the area of the land within 500 feet of the proposed development was represented by petition signers, and therefore, a two thirds vote of all the members of the commission was required to approve the proposed zone change.

On March 3,1987, after the close of the public hearings, the commission received a letter from Andrew Garson, the attorney who represented Baker-Firestone. In the letter Garson disagreed with the commission staffs conclusion that the protest petition satisfied the requirements of § 8-3 (b). He specifically disagreed with the method by which the staff had calculated both the acreage owned by the petitioners and the total acreage within the 500 foot area surrounding the Baker-Firestone property. Garson offered his own calculations, the results of which indicated that 20 percent or more of the owners of the property within 500 feet of Baker-Firestone’s property had not signed the petition, as required by § 8-3 (b). No copy of this letter was sent to Schless, as the attorney representing the opponents, by either Garson or the commission. Furthermore, no additional public hearing was scheduled to give the opponents of Baker-Firestone’s applications an opportunity to refute Garson’s claims.

On the same date, March 3, 1987, the commission held an executive session, during which it considered Baker-Firestone’s zone amendment and special permit applications. The minutes of that meeting indicate that the commission’s staff reported that a valid protest petition had been filed. The record does not indicate whether the commission members agreed with the staff’s conclusion concerning the validity of the protest petition, or whether they later changed their minds after receiving the ex parte evidence from Garson. Nonetheless, the commission, six of whose seven members attended this meeting, voted four to two to approve Baker-Firestone’s applications with certain modifications and conditions, including a reduction in the number of allowable units to seventy-three. On March 5, 1987, the commission received a letter from town attorney Roy Ervin, in which he opined that if a sufficient protest had been made and if only six of the seven commission members had voted on a proposed zone change, then five votes would be required to adopt such a change.

Fifteen plaintiffs commenced a zoning appeal against Baker-Firestone and the commission. The trial court granted Baker-Firestone’s motion to dismiss as to all of the plaintiffs, except Richard Blaker and Edward Jennings, because the other plaintiffs had failed to furnish a proper bond as required by General Statutes § 8-8 (c). The court thereafter granted Baker-Firestone’s motion to dismiss for lack of aggrievement as to Blaker, leaving Jennings as the sole remaining plaintiff. In addressing the merits of Jennings’ appeal, the court concluded that Jennings had not demonstrated that the commission had acted illegally or arbitrarily, and, therefore, the court dismissed his appeal. These appeals followed.

In the first appeal, Jennings claims that the trial court erred in failing to find that the commission had acted arbitrarily and illegally in one or more of the following ways: (1) receiving ex parte evidence concerning the protest petition that had been filed; (2) voting only four to two to approve Baker-Firestone’s application for a zone change, even though a valid protest petition had been filed; (3) approving Baker-Firestone’s applications with conditions that rendered the approval invalid; and (4) approving a zone change that was not in harmony with the comprehensive plan of the town of Fairfield.

In the second appeal, the remaining plaintiffs other than Blaker claim that the trial court erred in determining that they had failed to satisfy the “bond or recognizance” requirement of § 8-8 (c). The remaining plaintiffs, including Blaker, also reiterate the claims made by Jennings in his appeal.

We find error with respect to Jennings’ first claim and no error with respect to his remaining claims. Because we remand the case for further proceedings, we decline consideration of the separate issue raised by the remaining plaintiffs.

I

We first consider the effect of the ex parte communication on Jennings’ burden to demonstrate that the commission acted illegally. We address together Jennings’ first two claims at this juncture, because Jennings and Baker-Firestone agree that if a valid protest petition had been filed, then a four to two vote would have been insufficient in this case to approve the zoning change. See Steiner, Inc. v. Town Plan & Zoning Commission, 149 Conn. 74, 175 A.2d 559 (1961).

The trial court reached two conclusions concerning the ex parte communication. We disagree with both conclusions. First, the court held that the commission’s receipt of Garson’s letter was not improper, because the letter related only to “a procedural question of what number of affirmative votes were required to approve the application.” Second, the court held that Jennings had the burden of proving that he was prejudiced by the commission’s receipt of the ex parte evidence.

The trial court’s first conclusion is contrary to our holding in Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 355 A.2d 21 (1974), in which we discussed the propriety of a planning and zoning commission’s receipt of ex parte evidence. We stated that “[wjhile proceedings before zoning and planning boards and commissions are informal and are conducted without regard to the strict rules of evidence . . . nevertheless, they cannot be so conducted as to violate the fundamental rules of natural justice. . . . The commission could not properly consider additional evidence submitted by an applicant after the public hearing without providing the necessary safeguards guaranteed to the opponents of the application and to the public. ‘This means a fair opportunity to cross-examine witnesses, to inspect documents presented and to offer evidence in explanation or rebuttal. . . .’” (Citation omitted.) Id., 207-208. We noted further that planning and zoning commissions are entitled to technical and professional assistance in matters that are beyond their expertise, and that such assistance may be rendered in executive session. Id., 208. We held, however, that “[t]he use of such assistance . . . cannot be extended to the receipt, ex parte, of information supplied by a party to the controversy without affording his opposition an opportunity to know of the information and to offer evidence in explanation or rebuttal.” Id.

While it recognized this standard, the trial court nonetheless held that Pizzola did not apply, because the ex parte evidence in this case pertained to a “procedural question.” Our holding in Pizzola provides no such exception, however, especially where, as in the present case, the “procedural question” determines whether the commission’s vote was sufficient to authorize the zone change. Applying the Pizzola standard to the present case, we conclude that the record amply supports Jennings’ claim that the commission’s receipt of the ex parte evidence was improper. Having so concluded, we must next decide whether that impropriety shifted the burden to the defendants to demonstrate that the ex parte communication did not prejudice Jennings. We hold that the burden was so shifted.

At the outset, we recognize that a party challenginthe action of a planning and zoning commission bears the burden of proving that the commission acted arbitrarily or illegally. Burnham v. Planning & Zoning Commission, 189 Conn. 261, 266, 455 A.2d 339 (1983); Morningside Assn. v. Planning & Zoning Board, 162 Conn. 154, 157, 292 A.2d 893 (1972). We do not retreat from these holdings. Rather, we treat the present ease in the same way that we have treated violations of General Statutes § 4-181, in reviewing administrative appeals arising under the Uniform Administrative Procedure Act (UAPA). Those cases are instructive because of the similarities between administrative appeals pursuant to the UAPA and administrative appeals from the decision of a planning and zoning commission.

In Martone v. Lensink, 207 Conn. 296, 301, 541 A.2d 488 (1988), for example, we recently held that “once a violation of [§ 4-181] has been proved by the party seeking relief, the burden shifts to the agency to prove that no prejudice has resulted from the prohibited ex parte communication.” Further, in Henderson v. Department of Motor Vehicles, 202 Conn. 453, 459, 521 A.2d 1040 (1987), we recognized that “[w]e would create a conundrum by imposing the burden of proving prejudice from an ex parte communication upon one challenging an agency decision, because an adjudicating official may not ordinarily be subjected to inquiry concerning the mental process used in reaching a decision. United States v. Morgan, 313 U.S. 409, 422, 61 S. Ct. 999, 85 L. Ed. 1429 (1941). The agency usually is in a better position to ascertain the content of any communications with its employees than is a party outside the agency, who often must depend on suspicion or rumor.”

Similarly, we conclude that a planning and zoning commission and an applicant before it would likely possess better information concerning the content of any ex parte communications between them and the effect that such a prohibited communication might have had on the commission’s decision. Thus, once it has been demonstrated that an improper ex parte communication has occurred, a presumption of prejudice arises. Although this presumption is rebuttable, the burden of showing that a prohibited ex parte communication between a commission and an applicant has not prejudiced a party must be allocated to those seeking to uphold the validity of the commission’s decision.

Baker-Firestone urges this court to declare that Jennings and the other opponents of its applications were not prejudiced by the commission’s receipt of the ex parte evidence, because, in fact, it was correct in its assertion that the protest petition was invalid. The trial court made no finding upon the factual issue of the validity of the petition because the evidence necessary to resolve the conflict between the report of the commission’s staff and the ex parte analysis submitted by the applicant was not presented. As an appellate court, we obviously cannot resolve such a disputed issue. In the trial court, the factual issue of the validity of the petition was adjudicated improperly because of the court’s legal error in allocating the burden of proof on that issue to Jennings. To correct the impact of that erroneous ruling, a further hearing must be held to permit the defendants to demonstrate that Baker-Firestone’s ex parte submission was not prejudicial. At that time the defendants may submit evidence to show that the ex parte communication did not prejudice Jennings, because the petition did not bear the required signatures or because of some other reason, and Jennings will have the opportunity to refute that evidence. Again, we note that Jennings and Baker-Firestone agree that if a valid protest petition had been filed, then the commission’s vote would have been insufficient to approve the zoning change. A necessary corollary is that if the petition were invalid, then the commission’s vote in this case would have been sufficient.

II

We address Jennings’ third and fourth claims at this juncture because, if the trial court on remand were to find that the ex parte communication was harmless, review of these additional claims would then be necessary. We find neither claim to be persuasive.

A

The commission attached several conditions to its approval of Baker-Firestone’s applications. Among those conditions, the commission required Baker-Firestone to submit revised site plans with an improved emergency access. Jennings claims that because of the impact on wetland areas, this condition will require further approval by the Fairfield conservation commission, the town’s inland wetlands agency. Jennings further maintains that there is no indication that the conservation commission will approve the revised site plans, and therefore, the condition rendered the commission’s approval invalid.

Baker-Firestone responds in two ways. First, it points out that nowhere in the commission’s letter of approval is there any indication that the emergency access will require further action by the conservation commission, because the emergency access might not have to traverse wetlands at all. Second, Baker-Firestone maintains that in any event, this court’s holding in Lurie v. Planning & Zoning Commission, 160 Conn. 295, 278 A.2d 799 (1971), permitted the commission to condition its approval on future action by another agency. We dispose of this claim on the second ground raised by Baker-Firestone.

In Lurie v. Planning & Zoning Commission, supra, 307, we held that “where an exception or a special permit is granted and the grant is otherwise valid except that it is made reasonably conditional on favorable action by another agency or agencies over which the zoning authority has no control, its issuance will not be held invalid solely because of the existence of any such condition.” (Emphasis added.) Our holding was intended to achieve greater flexibility in zoning administration by avoiding stalemates between a zoning authority and other municipal agencies over which it has no control. Id. Nowhere did we intimate, therefore, that, in order to be valid, conditional approval requires evidence that the other agency will act favorably on the future request. Such a holding in the present case would require evidence of the probability of future approval before the conservation commission has had an opportunity to review the site plans as revised. Further, it would be contrary to the policy of allowing a planning and zoning commission “to make the first move and the decision as to the conditions under which it would approve the issuance of a permit .... This is so even though the project may subsequently fail to materialize because one or more of the conditions has for any reason not been met.” Id. We conclude, therefore, that the phrase “reasonably conditional” in Lurie contemplates giving the other agency, over which a planning and zoning commission has no control, the opportunity to review the revised plans, thereby furthering the goal of cooperative action among municipal agencies, and that the record need not indicate whether the conservation commission is likely to approve the revised site plans.

B

Finally, Jennings claims that the zone change constituted spot zoning, because it was not in harmony with the comprehensive plan of the town of Fairfield. We disagree.

This court has held that “spot zoning is the ‘reclassification of a small area of land in such a manner as to disturb the tenor of the surrounding neighborhood.’ ” Morningside Assn. v. Planning & Zoning Board, supra, 161. Two elements must be satisfied before spot zoning can be said to exist. First, the zone change must concern a small area of land. Second, the change must be out of harmony with the comprehensive plan for zoning adopted to serve the needs of the community as a whole. Id. The comprehensive plan is to be found in the scheme of the zoning regulations themselves. First Hartford Realty Corporation v. Plan & Zoning Commission, 165 Conn. 533, 542, 338 A.2d 490 (1973).

Jennings’ spot zoning claim consists of three parts. First, he claims that the applicable special permit provision of the Fairfield zoning regulations must be considered when determining whether the zone change is in harmony with the town’s comprehensive plan, because this provision is an important aspect of the town’s comprehensive plan. See Fairfield Zoning Regs. § 25.5.4. Second, he claims that this special permit provision incorporates the Fairfield Master Plan (master plan) by reference, and therefore, the zone change must also be in harmony with the master plan. Finally, he maintains that the zone change is inconsistent with the master plan, and therefore with the comprehensive plan, because there was no compliance with the master plan directive that, for a zone change, there be a “fully demonstrated need for such type of land use.” Fairfield Master Plan, Part II, § 1.3.2.

Assuming Jennings is correct concerning the first two parts of his argument; cf. First Hartford Realty Corporation v. Plan & Zoning Commission, supra, 542 (master plan merely advisory); we disagree with his assertion concerning the third part. At the public hearings on the applications, Baker-Firestone’s representatives testified about the need for the proposed land use. Baker-Firestone’s representatives testified that Fairfield currently had a limited market of relatively affordable housing for young married couples and “empty nesters,” and that the condominium development would provide more affordable means of housing than would single family development. This evidence supports a finding by the commission of a “fully demonstrated need for such type of land use,” and the commission members were entitled to rely upon their own knowledge of the area to confirm the facts to which Baker-Firestone’s representatives had testified. Primerica v. Planning & Zoning Commission, 211 Conn. 85, 97-98, 558 A.2d 646 (1989). Having made such a determination, the commission could reasonably have concluded, as it did, that “[Baker-Firestone’s] proposal is consistent with the Master Plan.” We find further support for the commission’s finding in the portion of the master plan that discusses the planning development policy of Hulls Highway, the area involved in the present case. Section 2.5 of the master plan states that “[t]he residential diversity in the [Hulls Highway] area ranges from 2 to 12 dwelling units per acre with up to 500 dwelling units within a xk mile radius.” Thus, it appears that the specific use approved of in the present case, seventy-three condominium units on 19.65 acres of land, falls within the density range contemplated by the town’s master plan. The trial court, therefore, correctly concluded that the zone change was in harmony with the town’s comprehensive plan.

There is error in part, the judgment is set aside with respect to the ex parte communication and the case is remanded to the trial court for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       Baker-Firestone also applied for and received a special permit for land excavation and fill. No appeal was taken from the granting of this permit.

       General Statutes § 8-3 (b) provides: “Such regulations and boundaries shall be established, changed or repealed only by a majority vote of all the members of the zoning commission, except as otherwise provided in this chapter. If a protest against a proposed change is filed at or before a hearing with the zoning commission, signed by the owners of twenty per cent or more of the area of the lots included in such proposed change or of the lots within five hundred feet in all directions of the property included in the proposed change, such change shall not be adopted except by a vote of two thirds of all the members of the commission.”

       Baker-Firestone maintains that the issue of the commission’s receipt of ex parte evidence is not properly before this court because it exceeds the scope of the allegations in the administrative appeal complaint. Baker-Firestone relies upon the requirement in General Statutes § 8-8 (b) that “[t]he appeal shall state the reasons upon which it has been predicated . . . . ” It is quite clear in this case, however, that the principal ground upon which the administrative appeal was based was the claim that a valid protest petition had been filed. The significance of the ex parte communication is limited to determining how the burden of proof upon the validity of the petition should be allocated. In any event, there is no indication in the record that Baker-Firestone seasonably objected to the admission of evidence concerning the ex parte communication. If it had done so, the trial court might well have permitted an amendment of the complaint to include allegations concerning the ex parte communication.

       General Statutes (Rev. to 1987) § 4-181 provides: “Unless required for the disposition of ex parte matters authorized by law, members or employees of an agency assigned to render a decision or to make findings of fact and conclusions of law in a contested case shall not communicate, directly or indirectly, in connection with any issue of fact, with any person or party, nor, in connection with any issue of law, with any party or his representative, except upon notice and opportunity for all parties to participate. An agency member may communicate with other members of the agency, and may have the aid and advice of one or more personal assistants.”

       We reject Jennings’ view that the occurrence of the ex parte communication necessarily rendered the commission’s decision void. See Martone v. Lensink, 207 Conn. 296, 306, 451 A.2d 488 (1988).

       The only reference to an emergency access in the commission’s decision is in paragraph three of the conditions: “Revised plan shall indicate an improved emergency access to a standard which is satisfactory to Police and Fire officials and the Town Plan and Zoning Commission. However, thru road construction at Town standards, is not required.”

       Fairfield Zoning Regulations § 25.5.4 provides: “CONFORMANCE to plan of development. The special permit use, site plan and architectural design shall be in conformance with the purpose and intent of any plan of development adopted by the town plan and zoning commission for the area in which the special permit use is to be located.”

       Jennings does not challenge Baker-Firestone’s assertion that the land for the proposed development is situated in the Hulls Highway area.