author: Katz, J.

text:
    Robert Civardi v. City of Norwich et al.
    (14982)
    Peters, C. J., and Callahan, Borden, Berdon and Katz, Js.
    Argued September 22
    decision released November 8, 1994

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

      Nancy R. Sussman, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellee (defendant Second Injury and Compensation Assurance Fund).
   Katz, J.

The sole issue on appeal is whether the named defendant, the city of Norwich, by properly transferring its obligation to pay for the “compensation and medical treatment” of its injured employee, the plaintiff, Robert Civardi, to the defendant second injury fund (fund) under General Statutes (Rev. to 1983) § 31-349, thereby also transferred its responsibility under General Statutes (Rev. to 1983) § 31-284b, to pay for Civardi’s insurance benefits. In its appeal from the decision of the workers’ compensation review board denying its request to transfer to the fund its obligations under § 31-284b, Norwich maintains that the transfer of a case to the fund pursuant to § 31-349 simultaneously creates an obligation on the part of the fund to continue § 31-284b benefits as “compensation.” We disagree.

The following facts are undisputed. On August 12, 1983, Civardi sustained an injury to his back while in the course of his employment with Norwich. Because this 1983 injury aggravated preexisting injuries to his back, Norwich paid Civardi workers’ compensation disability benefits through July 23, 1986, pursuant to a voluntary agreement, as provided for by General Statutes (Rev. to 1983) § 31-296. As of July 24,1986, pursuant to § 31-349, Norwich transferred to the fund its responsibility to pay to Civardi any remaining liability for weekly indemnity payments. Norwich has, however, continued to date to pay Civardi’s health insurance benefits as required by § 31-284b.

At a hearing before a workers’ compensation commissioner on December 3,1991, Norwich disputed its obligation to pay Civardi’s § 31-284b insurance benefits for the period of time following July 24,1986, arguing that it had transferred to the fund, pursuant to § 31-349, not only its liability for indemnity payments, but also its responsibility to pay for Civardi’s § 31-284b insurance benefits. Rejecting Norwich’s argument, the commissioner concluded that § 31-349 did not transfer to the fund Norwich’s obligation to pay Civardi’s § 31-284b benefits. Following an appeal pursuant to General Statutes §§ 31-280b (b) and 31-301 (b), the compensation review board concluded that the transfer of § 31-284b benefits pursuant to § 31-349 may occur only after 104 weeks of total disability, and that Civardi was not totally disabled. Pursuant to General Statutes § 31-301b, Norwich appealed that decision to the Appellate Court, and we thereafter transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We hold that § 31-284b benefits are not “compensation” within the meaning of General Statutes (Rev. to 1983) § 31-349 and therefore affirm.

We begin our analysis with a discussion of the fund’s history and the purpose underlying its enactment. Connecticut, like most states, established the fund primarily to foster employment of individuals with an existing disability. See Hernandez v. Gerber Group, 222 Conn. 78, 82, 608 A.2d 87 (1992). “To prevent discrimination against handicapped workers, while providing the benefits of [workers’] compensation to such workers, virtually every state has enacted some form of second injury fund legislation. . . . Such legislation is also designed to relieve employers from the hardship of liability for those consequences of compensable injury not attributable to their employment.” (Internal quotation marks omitted.) Id. Furthermore, the combined effect of a successive injury to someone with a preexisting disability can far exceed the combined allowances for each injury existing separately. Therefore, under § 31-349, the employer by whom the employee is employed at the time of the second injury must pay all wages, benefits and covered medical costs only for the first 104 weeks of disability. Thereafter, pursuant to § 31-349, liability is transferred and all responsibility for “compensation and medical treatment” rests with the custodian of the fund.

Mindful of this history, we have cautioned that “[p]ayment of an award from a special fund such as the second injury and compensation assurance fund, which was established, inter alia, to assist in the payment of compensation awarded to handicapped and disadvantaged workers; General Statutes §§ 31-349—31-355; see Everett v. Ingraham, 150 Conn. 153, 158, 186 A.2d 798 [1962]; should be made only in accordance with express statutory authority; 101 C.J.S., Workmen’s Compensation, § 837 [1958]; in order to protect that special fund and prevent unwarranted diversions of it from the specific purpose for which it was created.” Going v. Cromwell Fire District, 159 Conn. 53, 61, 267 A.2d 428 (1970). The absence of any such express statutory authority therefore undermines the claim that the fund must assume liability for Civardi’s § 31-284b insurance benefits as a part of the § 31-349 transfer of liability for “compensation.”

Our resolution of this issue is further supported by the legislative history of § 31-284b. It is well established that in discerning legislative intent, we consider the statute’s specific language, the legislative policy that the statute was designed to implement, the history surrounding the statute’s enactment and the statute’s relationship to existing legislation. See Lauer v. Zoning Commission, 220 Conn. 455, 459-60, 600 A.2d 310 (1991). This exercise leads us to conclude that the expanded definition of “compensation” proffered by Norwich would exceed the legislative intent and place an undesired and unanticipated burden on the fund.

The legislature enacted § 31-284b following the decision in Stone & Webster Engineering Corp. v. Ilsley, 518 F. Sup. 1297 (D. Conn. 1981), that General Statutes (Rev. to 1981) § 31-51h was unconstitutional.* In Ilsley, the United Stated District Court ruled that by impermissibly regulating the duration of payments made by an employer to a jointly administered employee union welfare fund and altering an employer’s obligations pursuant to negotiated benefit plans, § 31-51h interferred with federal regulation under the Employee Retirement Income Security Act (ERISA). Id., 1300. Because federal lawmakers had clearly expressed in ERISA that federal law preempted the application of state laws in these areas, the court concluded that § 31-51h unconstitutionally intruded into the field. Id., 1302. The District Court noted, however, that the state law might have avoided ERISA preemption if the law had imposed obligations on employers only as part of the workers’ compensation regime. Id., 1301, citing 29 U.S.C. § 1003 (b) (3). In 1982, pending the appeal in Ils-ley, Connecticut lawmakers, aware that the District Court opinion might be affirmed, and in an effort to fall within the exception, attempted to insulate the obligations flowing from § 31-51h against constitutional challenge by placing them within the Workers’ Compensation Act.

The legislative history makes clear that § 31-284b was drafted to express the obligations then currently stated in § 31-51h. As stated in the Senate debate: “What we are doing here is taking the exact same language and moving it into workers’ compensation statutes. There is no change in benefits. As I said before, there is no change in the way in which we are dealing with it. We feel that if we move it into the workers’ [compensation] statutes that we would meet some of the problems that the court has already pointed out.” 25 S. Proc., Pt. 4, 1982 Sess., p. 1171, remarks of Senator Michael J. Skelley. Even those who opposed the passage of the new act pending a definitive ruling from the United States Court of Appeals for the Second Circuit shared the view that the act did not change any statutory obligations. They argued that: “[b]ecause the obligations which Bill 345 proposed are identical to those currently mandated by section 31-51h the bill presents the same questions as are being litigated in [Ilsley], If the Court of Appeals reverses the lower court ruling, section 31-51h will continue to be applicable, making Bill 345 totally unnecessary. If the Court of Appeals affirms the lower court ruling rendering section 31-51h void, the legislation before you continues rather than resolves the legal defects upon which such a decision would be based.” Conn. Joint Standing Committee Hearings, Labor and Public Employees, Pt. 1, 1982 Sess., p. 118. The pertinent part of § 31-284b provides, as did § 31-51h, that an employer, when it has provided fringe benefits for its working employees, must create a plan for the injured employee who is receiving or is entitled to receive workers’ compensation. We therefore conclude that there is nothing surrounding the enactment of § 31-284b to indicate that the 1982 legislature intended to change the benefits transferrable to the fund under § 31-349.

The legislature also provided in § 31-284b that in any case where workers’ compensation payments to an individual for total incapacity under the provisions of § 31-307 continue for more than 104 weeks, health and life insurance benefits are transferrable to the fund in accordance with § 31-349. General Statutes § 31-284b (d). This section was drafted to incorporate that portion of § 31-51h, enacted as No. 81-464 of the 1981 Public Acts, intended to deal with “an employee that is totally incapacitated and if that’s the case [then] that particular liability or burden that the employer would bear in carrying out his health benefits would be picked up by the second injury fund under Workers’ Compensation.” 24 S. Proc., Pt. 9, 1981 Sess., p. 2828, remarks of Senator Michael J. Skelley. Only in that instance has the legislature expressly transferred liability for § 31-284b benefits to the fund. Again, this reflects no substantive change from the previously enacted § 31-51h.

We also note that the legislative history of § 31-349 contains no reference to the transferability of § 31-284b benefits pursuant to a § 31-349 transfer based on a preexisting impairment. Despite the flurry of activity in this area in 1981 and 1982, the legislature made no substantive changes to § 31-349. “ ‘The [legislature] is always presumed to know all the existing statutes and the effect that its action or non-action will have upon any one of them. And it is always presumed to have intended that effect which its action or non-action produces.’ ” Southern New England Telephone Co. v. Public Utilities Commission, 144 Conn. 516, 523, 134 A.2d 351 (1957). We therefore find that the lack of any substantive changes to § 31-349 during and following the passage of § 31-284b reflects the legislature’s decision not to transfer the employer’s liability for § 31-284b benefits to the fund.

Additionally, although § 31-349 has existed in some form since 1949, Norwich has failed to cite any recorded instance of the fund’s willingness to accept responsibility for paying health insurance benefits as “compensation.” It appears that in the history of § 31-349 transfers, the fund has never assumed liability for an employer’s obligations for § 31-284b benefits pursuant to a § 31-349 transfer based on a preexisting impairment. See Luis v. Frito-Lay, Inc., 10 Conn. Workers’ Comp. Rev. Op. 50 (1992) (obligation to pay § 31-284b benefits did not transfer to the fund when the obligation to pay indemnity and medical benefits transferred under § 31-349), rev’d on other grounds, Luis v. Frito-Lay, Inc., Supreme Court, Docket No. SC 14536 (order, April 27, 1993). Although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and review board. See Crochiere v. Board of Education, 227 Conn. 333, 354, 630 A.2d 1027 (1993). We therefore find, in the case of an employee with a preexisting impairment, no legislative intent to mandate the transfer of liability for § 31-284b benefits to the fund as “compensation” under § 31-349.

Furthermore, we disagree with Norwich’s contention that our ruling in Deschnow v. Stamford, 214 Conn. 394, 572 A.2d 345 (1990), compels a contrary conclusion. In Deschnow, we considered “the eligibility of disabled members of municipal police and fire departments, who are entitled to compensation under General Statutes § 7-433c, the Heart and Hypertension Act, to receive insurance coverage from their municipal employers in accordance with General Statutes § 31-284b (a).” Id., 394-95. After first noting that § 7-433c entitled qualifying injured municipal officers and firefighters to receive from their employers “compensation and medical care in the same amount and the same manner” as provided to a disabled employee under the workers’ compensation statute, we looked to the broad definition of “income” in the workers’ compensation statute for guidance in construing the scope of “compensation” under § 7-433c. Id., 397-98; see also Felia v. Westport, 214 Conn. 181, 185, 571 A.2d 89 (1990). As a result, we concluded that “the economic benefits that qualify as ‘compensation’ under § 7-433c may include [§ 31-284b type] fringe benefits, in appropriate circumstances.” Deschnow v. Stamford, supra, 398.

Citing Deschnow, Norwich contends that “[t]he Supreme Court has thus definitively ruled that the term ‘compensation’ as utilized in the Workers’ Compensation Act includes group benefits provided pursuant to § 31-284b.” Norwich’s position, however, misstates the import of Deschnow and ignores the specific legal issue before us in that case. “It is a general rule that a case resolves only the issues explicitly decided in the case.” State v. Ouellette, 190 Conn. 84, 91, 459 A.2d 1005 (1983). Unlike Deschnow, the issue here is not whether Civardi is entitled to § 31-284b benefits, but rather, whether the fund, and not Norwich, must pay for those benefits subsequent to the § 31-349 transfer. Thus, instead of interpreting “compensation” broadly to comport with the remedial purpose of a statute such as § 7-433c, we must construe it narrowly to implement the limited purposes for which the legislature created the fund when it enacted § 31-349. See Going v. Cromwell Fire District, supra, 159 Conn. 61. Consequently, our categorization of § 31-284b benefits as “compensation” in the specific context of § 7-433c benefit entitlement does not govern our interpretation of the meaning of “compensation” within § 31-349.

The judgment of the compensation review board is affirmed.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1983) 31-349 provides: “compensation foe SECOND DISABILITY. PAYMENT OF INSURANCE COVERAGE FOR TOTALLY incapacitated persons. The fact that an employee has suffered a previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury, nor preclude compensation for death resulting therefrom. If an employee who has previously incurred, by accidental injury, disease or congenital causes, total or partial loss of, or loss of use of, one hand, one arm, one foot or one eye, or who has other permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone, he shall receive compensation for the entire amount of disability, including total disability, less any compensation benefits payable or paid with respect to the previous disability, and necessary medical care, as elsewhere provided in this chapter, notwithstanding the fact that part of such disability was due to a prior accidental injury, disease or congenital causes. The employer by whom the employee is employed at the time of the injury, or his insurance carrier, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. As a condition precedent to the liability of the second injury fund, the employer or his insurance carrier must, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case and shall furnish to said custodian a copy of the agreement or award together with all information purporting to support his claim as to the liability of the second injuiy fund, and shall make available to the custodian all medical reports as the custodian shall desire. Failure on the part of the employer or the carrier to comply does not relieve the employer or carrier of its obligation to continue furnishing benefits under the provisions of this chapter. In the event the custodian shall reject the claim of the employer and its insurer, the question shall be submitted to the commissioner having jurisdiction, as promptly as possible, and the employer or carrier shall continue furnishing benefits until the outcome is finally decided, and if the employer or carrier prevails all payments made beyond the one-hundred-four-week period shall be reimbursed to the employer or carrier by the second injury fund. After the employer or its insurer has completed the payment for the one-hundred-four-week period, he shall file with the commissioner having jurisdiction, and with the custodian of the second injury fund, a form indicating that all compensation and medical bills have been paid for the one-hundred-four-week period, and indicating thereon the date the custodian was notified of the pending case. Thereafter all responsibility for compensation and medical treatment shall be with the custodian of the second injury fund. . . . In any case where workers’ compensation payments to an individual for total incapacity under the provisions of section 31-307 continue for more than one hundred four weeks, the costs of accident and health insurance or life insurance coverage required under section 31-284b, shall be paid out of the second injury fund after the one hundred fourth week. Employers shall notify the custodian of the second injury fund within sixty days of the expiration of the one-hundred-four-week period that such coverage is required.”
      Prior to a technical amendment to the Workers’ Compensation Act in 1991, the second injury fund was officially titled the “second injury and compensation assurance fund.” See Public Acts 1991, No. 91-207. Thus, although this opinion refers only to the “second injury fund,” any reference to the second injury fund prior to the 1991 amendment impliedly refers to what was then officially known as the “second injury and compensation assurance fund.”

       General Statutes (Rev. to 1983) § 31-284b provides: “employee to continue INSURANCE COVERAGE OR WELFARE PLAN PAYMENTS FOR EMPLOYEES ELIGIBLE TO RECEIVE WORKERS’ COMPENSATION. USE OF SECOND injury fund, (a) In order to maintain, as nearly as possible, the income of employees who suffer employment-related injuries, any employer, as defined in section 31-275, who provides accident and health insurance or life insurance coverage for any employee or makes payments or contributions at the regular hourly or weekly rate for full-time employees to an employee welfare plan, as defined in section 31-53, shall provide to such employee equivalent insurance coverage or welfare plan payments or contributions while the employee is eligible to receive or is receiving workers’ compensation payments pursuant to this chapter, or while the employee is receiving wages under a provision for sick leave payments for time lost due to an employment-related injury.
      “(b) Any employer may provide such equivalent accident and health or life insurance coverage or welfare fund payments or contributions by: (1) Insuring his full liability under this act in such stock or municipal companies or associations as are or may be authorized to take such risks in this state; (2) creating an injured employee’s plan as an extension of any existing plan for working employees; (3) self-insurance; or (4) by such combination of the above-mentioned methods as he may choose.
      “(c) In the case of an employee welfare fund, an employer may provide such equivalent protection by making payments or contributions for such hours of contributions established by the trustees of the employee welfare fund as necessary to maintain continuation of such insurance coverage when such amount is less than the amount of regular hourly or weekly contributions for full-time employees.
      “(d) In any case where workers’ compensation payments to an individual for total incapacity under the provisions of section 31-307 continue for more than one hundred four weeks, the cost of such accident and health insurance or life insurance coverage after the one hundred fourth week shall be paid out of the second injury fund in accordance with the provisions of section 31-349.
      “(e) Such accident and health insurance coverage may include but shall not be limited to coverage provided by insurance or directly by the employer for the following health care services: Medical, surgical, dental, nursing and hospital care and treatment, drugs, diagnosis or treatment of mental conditions or alcoholism, and pregnancy and child care.”

       General Statutes (Rev. to 1983) § 31-296 provides in relevant part: “voluntary agreements. If an employer and an injured employee, or in case of fatal injury his legal representative or dependent, at a date not earlier than the expiration of the waiting period, reach an agreement in regard to compensation, such agreement shall be submitted in writing to the commissioner by the employer with a statement of the time, place and nature of the injury upon which it is based; and, if such commissioner finds such agreement to conform to the provisions of this chapter in every regard, he shall so approve it. A copy of the agreement, with a statement of the commissioner’s approval thereof, shall be delivered to each of the parties and thereafter it shall be as binding upon both parties as an award by the commissioner. He shall retain the original agreement, with his approval thereof, in his office and, if an application is made to the superior court for an execution, he shall, upon the request of said court, file in (he court a certified copy of the agreement and his statement of approval thereof. Before discontinuing payment on account of total or partial incapacity under any such agreement, the employer, if it is claimed by or on behalf of the injured person that his incapacity still continues, shall notify the commissioner and the employee of the proposed discontinuance of such payments, with the date of such proposed discontinuance and the reason therefor, and, such discontinuance shall not become effective unless specifically approved in writing by the commissioner.”
      Norwich paid Civardi temporary permanent disability benefits, as provided for by General Statutes § 31-308, pursuant to a voluntary agreement for the period ending October 21, 1984. On December 15, 1986, Civardi settled all his outstanding demands for compensation against Norwich for the period from October 21, 1984, to July 23, 1986.

       Since the transfer to the fund, Civardi has also received additional benefits for permanent partial disability pursuant to General Statutes § 31-308a.

       General Statutes § 31-280b provides in relevant part: “(b) The board shall review appeals of decisions made by compensation commissioners pursuant to this chapter. The chief shall annually select two compensation commissioners to sit with him to hear such appeals for a term of one year, except that no commissioner may sit in review of an award or decision rendered by him. The chief may select a third compensation commissioner to sit on the board if one of the board members is disqualified or temporarily incapacitated from hearing the matter under review.”

       General Statutes § 31-301 (b) provides: “The appeal shall be heard by the compensation review board as provided in section 31-280b. The compensation review board shall hear the appeal on the record of the hearing before the commissioner, provided, if it is shown to the satisfaction of the board 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 board may hear additional evidence or testimony.”

       General Statutes § 31-30 lb provides: “appeal of decision of compensation review board. Any party aggrieved by the decision of the compensation review board upon any question or questions of law arising in the proceedings may appeal the decision of the compensation review board to the appellate court.”

       We use Civardi’s date of the injury in determining the rights and obligations as between the parties. Iacomacci v. Trumbull, 209 Conn. 219, 222, 550 A.2d 640 (1988). This rule dates back to 1916 and has been applied consistently to all nonprocedural aspects of a ease. Accordingly, we examine the statutory authority that existed in 1983, in resolving the substantive issues before us. Id.
      Although not commented upon by the parties, we note that in 1991, the legislature revised the Workers’ Compensation Act. As one legislator remarked: “The bill before us is the product of two years of hard work by the Law Revision Committee, the Workers’ Compensation Commission, members of this Chamber and others to do a complete and total . . . rewrite ... of the Workers’ Compensation Statutes as we know them today.” 34 H.R. Proc., Pt. 5,1991 Sess., p. 1959, remarks of Representative Joseph A. Adamo. As part of this revision, the definitions contained within General Statutes § 31-275 of the Workers’ Compensation Act were greatly expanded. Section 31-275 (4) now provides that “[cjompensation” means “benefits or payments mandated by the provisions of this chapter, including, but not limited to . . . payments made under the provisions of section 31-284b . . . ,” There is nothing in the legislative history, however, to indicate even remotely that this provision was intended to apply to employees previously injured, and thereby to depart from the date of the injury rule. See Iacomacci v. Trumbull, supra, 209 Conn. 224. We therefore need not decide, in the absence of any such claim before us, whether § 31-275 (4) constitutes an express statement by the legislature of its intent that § 31-284b benefits transfer to the fund upon a § 31-349 transfer of compensation for those employees injured after the date of its passage.

       An obvious example is the worker who is blind in one eye. Certainly an injury to his remaining eye is a far greater disability than the combined allowance for each injury existing separately. A. Sevarino, Connecticut Workers’ Compensation After Reforms (1994) p. 85.

       General Statutes (Rev. to 1981) § 31-51h provides in pertinent part: “(a) No employer . . . shall cancel or withhold accident and health insurance or life insurance coverage of any employee or his dependents or cease to make payments or contributions at the regular hourly or weekly rate for full-time employees for each week of disability to an employee’s welfare fund as defined in subsection (h) of section 31-53 while the employee is eligible to receive or is receiving workers’ compensation payments pursuant to chapter 568 . . . .”

       The United States District Court’s decision was subsequently affirmed. Stone & Webster Engineering Corp. v. Ilsley, 690 F.2d 323 (2d Cir. 1982), aff'd sub nom. Arcudi v. Stone & Webster Engineering Corp., 463 U.S. 1220, 103 S. Ct. 3564, 77 L. Ed. 2d 1405 (1983).

       The intrusion into this federally legislated field violated the constitution of the United States, article six, clause 2, which provides in relevant part: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
      “[T]he supremacy clause mandates that federal law overrides, i.e., preempts, any state regulation where there is an actual conflict between the two sets of legislation such that both cannot stand, for example, if federal law forbids an act which state legislation requires. Moreover, where Congress acts pursuant to a plenary power, it may specifically prohibit parallel state legislation, i.e., occupy or preempt, the field . . . .” 1R. Rotunda, J. Nowak & J. Young, Constitutional Law: Substance and Procedure (1986) § 12.1, p. 623.

       The 1982 amendment to § 31-349 replacing the reference to § 31-51h with a reference to § 31-284b was to provide consistency and was therefore merely technical.

       The part of this opinion relating to § 31-284b benefits for private employment was reversed by this court in Luis v. Frito-Lay, Inc., Supreme Court, Docket No. SC 14536 (order, April 27, 1993), because of the decision of the United States Supreme Court in District of Columbia v. Greater Washington Board of Trade, 506 U.S. 125, 127, 113 S. Ct. 580, 121 L. Ed. 2d 513 (1992) (ERISA preempts District of Columbia’s law requiring employers who provide health insurance for their employees to provide equivalent health insurance coverage for injured employees eligible for workers’ compensation benefits). The state and municipalities, however, continue to provide § 31-284b benefits and may seek reimbursement under General Statutes § 31-349 (e) for those health insurance premiums for their employees collecting benefits pursuant to § 31-307 for more than 104 weeks.


source: Caselaw Access Project

author: Berdon, J.

license: Public Domain

text:
    Town of Wallingford et al. v. Hartford Accident and Indemnity Company et al.
    (14998)
    Peters, C. J., and Callahan, Berdon, Katz and Palmer, Js.
    Argued September 27
    decision released November 8, 1994

      Daniel P. Scapellati, with whom, on the brief, was John W. Lemega, for the appellants (plaintiffs).

      Paul E. Pollock, with whom, on the brief, was Andrew S. Turret, for the appellees (defendants).
   Berdon, J.

The principal issue in this action for a declaratory judgment is whether a provision in an insur-anee contract excluding coverage for bodily injury claims arising out of police “activities” excludes coverage for claims based on the alleged negligence of police in operating a town jail.

The plaintiffs in this action are the town of Walling-ford and three members of the Wallingford police department. They sought a judgment declaring that either or both of the defendants, the Hartford Accident and Indemnity Company and the Hartford Insurance Group, are obligated to defend and indemnify them against a lawsuit filed by a third party. The trial court, holding that a provision in the insurance contract excluded coverage, granted summary judgment for the defendants. The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The relevant facts are undisputed. In 1988, the administrator of the estate of Cristobal Rosado brought an action against the plaintiffs for Rosado’s wrongful death. The complaint (Rosado complaint) alleged the following. In December, 1986, Officer Dennis Reynolds arrested Rosado on a charge of shoplifting and took him to the Wallingford police station, where Rosado was placed in a detention cell. Reynolds or other Wal-lingford police officers knew or had reason to believe that Rosado was emotionally distraught, that he had tested positive for the human immunodeficiency virus (HIV), which causes acquired immunodeficiency syndrome (AIDS), or that he had AIDS, that he used drugs, and that he had requested medical attention. Sometime on the day of his arrest, Rosado hanged himself in his cell. Although the police department had installed a video monitor that was designed to prevent suicide attempts, the police dispatcher had observed Rosado on the monitor only after Rosado had hanged himself. The dispatcher had asked a police officer to try to revive Rosado, but the officer stopped his efforts after learning that Rosado had claimed to have AIDS.

The Rosado complaint alleged that the plaintiffs were negligent in that the arresting officer had failed to provide Rosado with necessary medical care, the dispatcher had failed to monitor Rosado in his cell, and the police chief (a) had failed to train his officers in how to recognize and treat prisoners who need medical attention or who need attention because of “suicidal tendencies or abnormal personalities,” (b) had failed to train his officers about how to provide emergency medical care to prisoners with AIDS and its related diseases, and (c) had failed to provide equipment to allow officers to give medical treatment to prisoners who are suspected of having AIDS or its related diseases.

At the time of the incident in question, the town of Wallingford was covered by a comprehensive general liability insurance policy under which the defendants agreed to defend and indemnify the town against certain claims brought against it. The policy, however, included the following exclusionary clause, entitled “Exclusion of Law Enforcement Activities”: “It is agreed that the insurance does not apply to bodily injury or property damage arising out of the activities of police personnel, police departments or other law enforcement agencies or the individual or joint action of a member or members of the police department or other law enforcement agencies in the line of duty or on behalf of or on the orders of the named insured.”

The plaintiffs sought to have the defendants defend and indemnify them against the Rosado complaint. When the defendants refused on the basis of the exclusionary clause, the plaintiffs brought this action for a declaratory judgment. The trial court, in granting summary judgment for the defendants, held that the language of the exclusionary clause was clear and unambiguous and excluded coverage as a matter of law.

In urging us to reverse the judgment of trial court, the plaintiffs contend that we must focus on the words “enforcement” and “activities” in the exclusionary clause, maintaining that those words can reasonably be interpreted to exclude coverage only for those claims arising out of “law enforcement activities.” They argue that such an exclusion has two effects. First, it excludes coverage only for claims based on actions of police officers who are enforcing the law—that is, apprehending and arresting criminals. Second, it excludes coverage for claims based only on police action, rather than police inaction. Therefore, because the Rosado complaint was based on events that occurred in the town jail after Rosado had been arrested, and because the complaint asserts negligent inaction of the police—that is, the police officers’ failure to monitor Rosado in his cell, to heed his medical needs, or to train and equip officers for medical care of prisoners with the AIDS virus— the plaintiffs argue that the exclusion has no effect. We decline to accept such a tortured construction of an otherwise clear and unambiguous insurance exclusion.

We begin our analysis by noting that it is the function of the court to construe the provisions of the contract of insurance. Gottesman v. Aetna Ins. Co., 177 Conn. 631, 634, 418 A.2d 944 (1979). “An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract and enforced in accordance with the real intent of the parties as expressed in the language employed in the policy. . . . The determinative question is the intent of the parties, that is, what coverage the . . . [plaintiff expected to receive and what the defendant was to provide, as disclosed by the provisions of the policy. ... If the words in the policy are plain and unambiguous the established rules for the construction of contracts apply, the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning, and courts cannot indulge in a forced construction ignoring provisions or so distorting them as to accord a meaning other than that evidently intended by the parties. . . .” (Citations omitted; internal quotation marks omitted.) Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 583, 573 A.2d 699 (1990).

The plain language of the exclusionary clause makes clear that its effect is limited neither to “law enforcement activities” nor to police action, as opposed to police inaction. Despite the plaintiffs’ repeated use of the phrase “law enforcement activities” in their brief, that phrase appears nowhere in the operative language of the exclusion. The exclusion clearly refers to “the activities of police personnel, police departments or other law enforcement agencies . . . .” Therefore, “law enforcement” does not modify the types of activities that are excluded from coverage; rather, the plain language makes clear that all activities by police personnel are excluded from coverage, as well as all activities of police departments and all activities of nonpolice law enforcement agencies in the town.

The only case the plaintiffs cite in support of their position is Imperial Casualty & Indemnity Co. v. Home Ins. Co., 727 F. Sup. 917 (M.D. Pa.), aff'd, 909 F.2d 1476 (3d Cir. 1990), in which the court held that a “law enforcement” exclusion did not bar coverage for a claim alleging negligent medical treatment while the decedent was confined in the county jail. The plaintiffs’ reliance on that case is, however, misplaced. In Imperial Casualty & Indemnity Co., unlike here, the applicable exclusion was limited on its face to “any loss or claim arising out of the law enforcement activities or operations” of the police. (Emphasis added.) Id., 918. As shown above, the language of the exclusion in this case has much broader effect and precludes coverage for claims arising out of any activities of the police, whether or not related to “law enforcement.” See Murdock v. Dinsmoor, 892 F.2d 7, 8 (1st Cir. 1989) (clause excluding coverage for injuries “arising out of . . . the activities and operations of” the police “covered not only police operations per se, but also anything incident to or having connection with such operations”). Therefore, the mere fact that the allegations of the Rosado complaint revolved around events occurring within a jail, rather than during an arrest or apprehension, is of no significance. Police activities in both settings are excluded from coverage under the plain language of the contract. See Siat v. Fauria, 494 So. 2d 1224, 1226 (La. App.), cert. denied, 497 So. 2d 1012 (La. 1986), recons, denied, 500 So. 2d 416 (La. 1987) (exclusion for claims “arising from activities of . . . policemen” unambiguously excludes “any activity of a policeman”).

Furthermore, there is nothing in the language of the exclusion or in our law to support the plaintiffs’ claim that the word “activities” should be interpreted to mean “action” but not “inaction.”* The plaintiffs ignore the fact that “in many situations the distinction between the two is altogether without significance in the law. Often the same conduct could be described as either one or the other.” 3 F. Harper, F. James & O. Gray, Torts (2d Ed. 1986) § 18.6, pp. 712-13. The plaintiffs, for example, point to the Rosado complaint as alleging a failure to observe Rosado in his cell, a failure to heed his medical needs, and a failure to train and equip the police properly. Yet these same “inac-tions” can easily be characterized as affirmative “actions”—observing Rosado improperly, treating his medical needs improperly, and training and equipping the officers improperly. The plaintiffs concede that if these had been the allegations of the Rosado complaint, the exclusion would work to bar coverage for the claim.

Moreover, the plaintiffs have not cited a single case to support their argument that the word “activities” in an exclusion clause is ineffective to bar coverage of claims alleging a negligent failure to act. On the other hand, two cases have interpreted the word “activities” as excluding coverage for such allegations. See Imperial Casualty & Indemnity Co. v. Home Ins. Co., supra, 727 F. Sup. 918 (failure to provide medication or treatment); Siat v. Fauria, supra, 494 So. 2d 1225 (failure to test, inspect or otherwise detect the defectiveness of a revolver). We believe these cases correctly construe the word “activities” to encompass claims based upon both action and inaction.

The judgment is affirmed.

In this opinion the other justices concurred.

       The individual defendants are Police Chief Joseph J. Bevans, Officer Dennis Reynolds and dispatcher Marjorie Biehl.

       After the plaintiffs filed this appeal, they reached a settlement of the underlying lawsuit with the estate of Rosado. The plaintiffs continue to pursue this appeal, however, in order to recover the amount of the settlement plus the expenses they incurred in defending against the Rosado complaint. See Missionaries of the Company of Mary, Inc. v. Aetna Casualty & Surety Co., 155 Conn. 104, 114-15, 230 A.2d 21 (1967).

       Although in the absence of “definitive contract language” the determination of what the parties intended is a question of fact; Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 199, 520 A.2d 208 (1987); neither party in this case claims that this matter is not a question of law based upon the language of the provision. See Hatchco Corp. v. Della Pietra, 195 Conn. 18, 21, 485 A.2d 1285 (1985).

       It is true that the exclusion is entitled “law enforcement activities.” It is well established, however, that a heading above an insurance provision is not a grant of coverage. Vadheim v. Continental Ins. Co., 107 Wash. 2d 836, 841, 734 P.2d 17 (1987). An insured is not entitled to read only the heading and ignore the operative language of the provision itself; indeed, the brevity of the heading indicates that the insured should read further to learn the actual coverage specifications. Id., 842; see 13 J. & J. Apple-man, Insurance Law and Practice (1976) § 7387, p. 169 (“[t]he captions will not, of themselves, be taken to override the intention of the parties as shown by the provisions and clauses inserted therein”).

       Indeed, the court in Imperial Casualty & Indemnity Co. v. Home Ins. Co., supra, 727 F. Sup. 917, recognized that the result might have been different had the wording of the exclusion been more expansive. For example, the court distinguished its holding from that in Home Indemnity Co. v. Johnson County Fiscal Court, 682 F. Sup. 326, 327 (E.D. Ky. 1987). In Johnson County Fiscal Court, the clause excluded coverage for claims “arising out of the performance of the insured’s duties to provide law enforcement . . . and all operations necessary and incidental thereto.” Id. The court in Johnson County Fiscal Court held that the clause effectively excluded coverage for a claim arising out of the escape of an inmate from the county jail, concluding that the operation of a jail “is a component of and incidental to law enforcement.” Id., 329.
      The Imperial Casualty & Indemnity Co. court emphasized that the Johnson County Fiscal Court holding was “distinguishable” because “[i]n the instant case, on the other hand, the exclusionary language stops at law enforcement activities or operations. It does not further preclude coverage for incidental operations.” Imperial Casualty & Indemnity Co. v. Home Ins. Co., supra, 727 F. Sup. 918-19.

       The plaintiffs base their argument largely on their interpretation and use of definitions found in Webster’s Third New International Dictionary. They cite the definition of “activity” as being “the quality or state of being active.” In turn, they cite the definition of “active” as being “characterized by action rather than by contemplation or speculation.” In doing so, the plaintiffs ignore another definition of “activity” that seems more applicable within the context of this insurance contract. The more appropriate definition of “activity” in Webster’s is the “natural or normal function or operation.” When this definition is applied, the allegations of the Rosado complaint would clearly be excluded from coverage under the contract of insurance.


author: Peters, C. J.

text:
    Elinor Halpern v. Board of Education of the City of Bristol
    (14975)
    Peters, C. J., and Callahan, Norcott, Katz and Palmer, Js.

      Argued September 21
    decision released November 8, 1994

      Jon L. Schoenhorn, with whom, on the brief, was Christine M. Fiedler, for the appellant (plaintiff).

      Thomas N. Sullivan, for the appellee (defendant).

      William J. Dolan filed a brief for the Connecticut Education Association as amicus curiae.
   Peters, C. J.

The dispositive issue in this administrative appeal is the scope of our mandate “for further proceedings consistent with [our] opinion” in Lee v. Board of Education, 181 Conn. 69, 84, 434 A.2d 333 (1980). Since 1974, the plaintiff, Elinor Halpern, formerly Elinor Lee, has challenged the termination of her contract as a tenured teacher by the defendant board of education of the city of Bristol (board). In Lee, we held that the board had properly conducted a termination hearing in accordance with the statutory requirements of the Teacher Tenure Act; General Statutes § 10-151; but had violated the constitutional requirements of procedural due process by failing to provide the plaintiff with “a written statement of the decision reached, the reasons for the determination, and a fair summary of the evidence relied upon.” Id., 79.

Pursuant to our remand, the board convened in November, 1980, to consider the transcript and the exhibits introduced at the 1974 termination hearing. On the basis of that documentary review, the board reaffirmed its decision to terminate the plaintiffs employment and issued findings and conclusions in support of its determination. The plaintiff appealed that decision to the trial court, which rendered a judgment in favor of the board. The plaintiff then appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We reverse the judgment of the trial court.

The gravamen of the plaintiffs present appeal is that the members of the board that reconsidered her termination in 1980, could not validly conduct the “further proceedings” ordered by this court because none of them had been a member of the board at the time of the original termination proceedings in 1974. The plaintiff maintains that the actions of the newly constituted board in making its determination on the prior record, without conducting an entirely new hearing, violated: (1) her statutory rights; (2) her constitutional rights; and (3) the mandate of our remand order. Although we disagree that a new hearing is required, we agree that the special circumstances of this case warrant a more expansive interpretation of our mandate than it received from the board or from the trial court.

Well established principles govern further proceedings after a remand by this court. “In carrying out a mandate of this court, the trial court is limited to the specific direction of the mandate as interpreted in light of the opinion. . . . This is the guiding principle that the trial court must observe. . . . Compliance means that the direction is not deviated from. The trial court cannot adjudicate rights and duties not within the scope of the remand. ... It is the duty of the trial court on remand to comply strictly with the mandate of the appellate court according to its true intent and meaning. No judgment other than that directed or permitted by the reviewing court may be rendered, even though it may be one that the appellate court might have directed. The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein. ...” (Citations omitted; emphasis in original; internal quotation marks omitted.) West Haven Sound Development Corp. v. West Haven, 207 Conn. 308, 312, 541 A.2d 858 (1988); Wendland v. Ridgefield Construction Services, Inc., 190 Conn. 791, 794-95, 462 A.2d 1043 (1983); State v. Avcollie, 188 Conn. 626, 643, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983); Nowell v. Nowell, 163 Conn. 116, 121, 302 A.2d 260 (1972).

Applying these principles to the circumstances of this case, we are persuaded that the plaintiff cannot prevail on her claim that she is entitled, as a matter of statutory right, to a new termination hearing. In our prior decision, we concluded that the plaintiff’s statutory rights had not been violated. Lee v. Board of Education, supra, 181 Conn. 76-77. Accordingly, our mandate for further proceedings did not direct a new hearing under the statute. Indeed, a contrary mandate would have required reconciliation with our holding in Gervasi v. Town Plan & Zoning Commission, 184 Conn. 450, 452-53, 440 A.2d 163 (1981), that we do not have unlimited authority to order new administrative hearings.

The terms of our mandate necessarily reflected, however, our conclusion that the plaintiff had established a violation of her constitutional rights by reason of the board’s failure to adopt a statement of the grounds for her termination and the evidence supporting that termination. The conclusion that the board’s 1974 actions had infringed the plaintiff’s constitutional rights cannot now be relitigated. The only question that remains is what procedural vehicle we contemplated by our mandate for further proceedings to vindicate those rights. As far as the present record shows, although our judgment was rendered six years subsequent to the plaintiff’s termination hearing, the parties never sought clarification of the terms of our mandate. The board and the trial court were required, therefore, to construe our mandate for vindication of the plaintiffs constitutional rights in light of the actual circumstances at the time the remand was to be implemented. “We have rejected efforts to construe our remand orders so narrowly as to prohibit a trial court from considering matters relevant to the issues upon which further proceedings are ordered that may not have been envisioned at the time of the remand. Blaker v. Planning & Zoning Commission, 219 Conn. 139, 592 A.2d 155 (1991). So long as these matters are not extraneous to the issues and purposes of the remand, they may be brought into the remand hearing.” Cioffoletti v. Planning & Zoning Commission, 220 Conn. 362, 369, 599 A.2d 9 (1991).

The relevant circumstances in this case necessarily include the fact that, in 1980, the members of the board who were charged with implementing our remand order included no one who had participated in the 1974 hearings concerning the plaintiff’s termination. We are confident that the board members attempted to discharge their responsibilities in a conscientious manner and that they read with care the documentation that was available to them. Nonetheless, we are persuaded that the procedure employed by the board deprived the plaintiff of any meaningful ability to participate in the board’s remediation of her constitutional rights. That was not the intent of our mandate. Further proceedings are therefore required.

To eliminate any ambiguity in our present order of remand, we direct the trial court to set aside its judgment and to remand the case to the board to determine whether there are grounds for the plaintiffs termination and to specify the evidence that supports its determination. In order to provide the plaintiff with a voice in these proceedings, we direct the board to adopt, by analogy, the procedure specified by the Uniform Administrative Procedure Act in General Statutes § 4-179. That section requires, in somewhat comparable circumstances, the preparation of a “proposed final decision,” and affords to interested parties the opportunity to comment on that proposal by filing exceptions and presenting briefs and oral argument to the officials who are to render the decision. We have held that the opportunity to respond to a “proposed final decision” is a constitutionally adequate safeguard of the due process rights of the parties whose interests are being adjudicated in a contested case. Pet v. Dept. of Health Services, 228 Conn. 651, 672, 638 A.2d 6 (1994). The board is therefore directed in this case to prepare such a “proposed final decision,” and thereafter to afford the plaintiff and other interested parties the opportunity for appropriate responses thereto, including the right to file exceptions and to present briefs and oral argument to the board. After due consideration of these responses, the board is then authorized to adopt a final decision including the requisite findings concerning the propriety of the termination of the plaintiffs tenure as a teacher in 1974.

The judgment of the trial court is reversed and the case is remanded to that court with direction to remand the case to the board for further proceedings in accordance with the mandate contained in the immediately preceding paragraph.

In this opinion the other justices concurred.

       The inordinate delays in the adjudication of this case reflect credit on no one. The record demonstrates that the board acted promptly in response to our remand. Thereafter, the plaintiff sought simultaneously to pursue an action for a declaratory judgment and a writ of mandamus as an alternative to her administrative appeal. That alternative remedy was not conclusively determined to be unavailable to the plaintiff until this court’s decision in Halpern v. Board of Education, 196 Conn. 647, 495 A.2d 264 (1985). Review of the plaintiffs administrative appeal was then apparently delayed by an inability to locate the administrative record for a significant period of time.

       The plaintiff has not challenged the conclusion of the trial court that the evidence adduced at her termination hearing was sufficient to support the findings of the board.

       Because our focus is on a remand subsequent to a determination that the plaintiffs constitutional rights had been violated, we need not decide whether, as the board suggests, contested administrative cases constitutionally can be adjudicated, ab initio, by agency members who have not had the opportunity personally to observe the witnesses, in the absence of procedures equivalent to those mandated in this opinion. Therefore, we do not decide what precedential value to assign the cases from other jurisdictions cited by the board. See, e.g., Utica Mutual Ins. Co. v. Vincent, 375 F.2d 129, 131-34 (2d Cir. 1967); Lewandoski v. Vermont State Colleges, 142 Vt. 446, 451-53, 457 A.2d 1384 (1983).

       General Statutes § 4-179 provides: “agency proceedings, proposed final decision, (a) When, in an agency proceeding, a majority of the members of the agency who are to render the final decision have not heard the matter or read the record,' the decision, if adverse to a party, shall not be rendered until a proposed final decision is served upon the parties, and an opportunity is afforded to each party adversely affected to file exceptions and present briefs and oral argument to the members of the agency who are to render the final decision.
      “(b) A proposed final decision made under this section shall be in writing and contain a statement of the reasons for the decision and a finding of facts and conclusion of law on each issue of fact or law necessary to the decision.
      “(c) Except when authorized by law to render a final decision for an agency, a hearing officer shall, after hearing a matter, make a proposed final decision.
      “(d) The parties and the agency conducting the proceeding, by written stipulation, may waive compliance with this section.”
      We direct the board to adopt this procedure in the special circumstances of this case by analogy only, as we recognize that the Uniform Administrative Procedure Act defines the term “agency” to exclude “town or regional boards of education.” General Statutes § 4-166 (1); see Neyland v. Board of Education, 195 Conn. 174, 177-78 and n.5, 487 A.2d 181 (1985).


text:
    Petco Insulation Company, Inc. v. Allan A. Crystal, Commissioner of Revenue Services AAIS Corporation v. Allan A. Crystal, Commissioner of Revenue Services
    (14978)
    Borden, Berdon, Norcott, Katz and Palmer, Js.

      Argued September 29
    decision released November 15, 1994

      Robert J. Percy, for the appellant (plaintiff AAIS Corporation).

      Anne O’Leary, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Katz, J.

The principal issue in this appeal is whether the trial court correctly interpreted the term “services” in General Statutes § 12-407 (2) (i) (I) to exclude tangible personal property purchased and consumed by asbestos removal contractors. The statute exempts the cost of “hazardous waste removal services” from sales and use tax, and the department of revenue services defines asbestos as a “hazardous waste.” Department of Revenue Services Ruling 89-230 (November 21, 1989). Because we conclude that tangible personal property purchased and consumed by asbestos removal contractors is not services within the meaning of § 12-407 (2) (i) (I), we affirm the judgment of the trial court.

The record establishes the following undisputed facts. The plaintiff, A AIS Corporation, is a contractor engaged in the business of providing asbestos abatement services. Asbestos includes any of several fibrous minerals that commonly were used as insulation until it was discovered that the inhalation of asbestos fibers may cause a variety of lung diseases, including cancer. Therefore, extensive precautions are taken in preparation for asbestos removal and in the actual removal process.

As a contractor engaged in asbestos removal services, the plaintiff must purchase disposable supplies and materials, including paper uniforms, filters, plastic covering, plastic bags, tape and other miscellaneous materials, that are used in the process. The cost of these materials accounts for approximately 10 to 15 percent of the amount paid for the service by the owner of the property. Because the industry assumed that tangible personal property used to remove asbestos was excluded from the sales and use tax pursuant to § 12-407 (2) (i) (I), none of the plaintiffs suppliers required it to pay sales tax on the purchase of these materials. The defendant, the commissioner of revenue services, determined, however, that tangible personal property purchased by contractors for use in the removal of asbestos is subject to sales and use tax and levied a deficiency assessment against the plaintiff pursuant to General Statutes § 12-415. The plaintiff then petitioned the defendant for a hearing and reassessment under General Statutes § 12-418, arguing that § 12-407 (2) (i) (I) exempts materials as well as labor from the sales and use tax. After the defendant found that it had assessed the deficiency properly and denied a hearing, the plaintiff appealed to the Superior Court pursuant to General Statutes § 12-422. That court determined that the plaintiff had failed to sustain its burden of proof that the assessment had been erroneously levied and, accordingly, upheld the deficiency assessment. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm.

The plaintiff made two arguments to the trial court. First, it argued that the tangible personal property used to remove asbestos was resold by the plaintiff to the service recipients and therefore was not taxable to the plaintiff. Because the plaintiff did not obtain a resale certificate and because it ultimately consumed the materials, the trial court found no merit in this argument. The plaintiff has not raised it before this court and, therefore, we do not address it.

In the alternative, the plaintiff argued that the meaning of “services” under § 12-407 (2) (i) (I); see footnote 1; includes both labor and tangible personal property. As the trial court reasoned, although the term “services” is not defined for the purposes of chapter 219 of the General Statutes, entitled “Sales and Use Taxes,” the term is used repeatedly throughout § 12-407 (2), the definitional section, as well as General Statutes § 12-412, the exemption section. The court concluded that when the legislature intended to exempt both services and tangible personal property from the tax, it clearly indicated this intent by explicitly including both terms. The court reasoned, therefore, that if the legislature had intended to exempt both labor and materials used for asbestos abatement services, it would have specifically provided for that exemption as it had in other legislative enactments dealing with the sales and use tax. Accordingly, the trial court determined that the plaintiff had failed to sustain its burden of proof and upheld the defendant’s deficiency assessment. We agree with the reasoning and conclusion of the trial court.

At the outset, we note the principles of statutory construction that govern the applicability of a tax exemption. “First, statutes that provide exemptions from taxation are a matter of legislative grace that must be strictly construed against the taxpayer. Second, any ambiguity in the statutory formulation of an exemption must be resolved against the taxpayer. Third, the taxpayer must bear the burden of proving the error in an adverse assessment concerning an exemption.” Plastic Tooling Aids Laboratory, Inc. v. Commissioner of Revenue Services, 213 Conn. 365, 369, 567 A.2d 1218 (1990). Applying these principles to the present case, we conclude that the trial court properly determined that the plaintiff failed to sustain its burden of proving that the § 12-407 (2) (i) (I) exemption for “services” includes tangible personal property purchased and consumed by asbestos removal contractors.

Neither the plain wording of the statute nor the legislative intent supports the plaintiffs argument. It is fundamental that statutory construction requires us to ascertain the intent of the legislature and to construe the statute in a manner that effectuates that intent. Lauer v. Zoning Commission, 220 Conn. 455, 459-60, 600 A.2d 310 (1991). “In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation . . . .” Id., 460. After considering the language of the statute, both alone and in the context of chapter 219 of the General Statutes, as well as the underlying legislative purpose of the exemption, we conclude that the sales and use tax exemption for asbestos removal services under § 12-407 (2) (i) (I) does not include tangible personal property purchased and consumed by an asbestos removal contractor.

The plain language of §§ 12-407 and 12-412 makes clear that § 12-407 (2) (i) (I) does not include tangible personal property. First, § 12-407 (2) distinguishes between tangible personal property and services. Section 12-407 (2) (i), (k), (l) and (m) define certain services as sales for purposes of the sales and use tax. Much of the remainder of the statute relates to the sales or leasing of “tangible personal property.” General Statutes § 12-407 (2) (a), (b), (c), (d), (f), (g) and (j). Therefore, according to the plain language of § 12-407 (2), services are differentiated from tangible personal property.

Second, § 12-412 indicates that an exemption for services does not encompass an exemption for tangible personal property. It is settled that statutes must be construed consistently with other relevant statutes because the legislature is presumed to have created a coherent body of law. In re Valerie D., 223 Conn. 492, 524, 613 A.2d 748 (1992). In construing a statute, the court may look to other statutes relating to the same subject matter for guidance. Vecca v. State, 29 Conn. App. 559, 564, 616 A.2d 823 (1992). Exemptions under § 12-412 (21), (22), (29), (55), (68), (73) and (76) relate only to the sale of various tangible personal property. Section 12-412 (3) (B), (11), (36), (41), (58), (62), (74) and (77) exempt only services. Finally, § 12-412 (1), (2), (5), (8) and (35) specifically exempt both services and tangible personal property. Thus, when the legislature intended to exempt tangible personal property, services or both, it clearly provided for that specific exemption. We assume the legislature recognized and intended the distinctions it incorporated in the provisions of §§ 12-407 (2) and 12-412. Windham First Taxing District v. Windham, 208 Conn. 543, 554, 546 A.2d 226 (1988). Therefore, the statutory differentiation between “services” and “tangible personal property” in these sections indicates that the legislature intended the definition of services to exclude tangible personal property for the purposes of sales and use tax exemptions.

The plaintiff contends that asbestos removal services are unique in that the materials a contractor introduces onto a removal site are used only once and, thereafter, they become part of the hazardous waste. The plaintiff argues that because the tangible personal property and the removal services are inseparable, both should be exempt from the sales and use tax. We are not persuaded. The sales and use tax statutes indicate that the term “services” does not include any tangible personal property, spare parts or equipment that may be used in the performance of a service. When an exemption is intended for both service and materials utilized in the act of providing that service, the legislature has explicitly included each component. See General Statutes §§ 12-407 and 12-412.

Further, as the trial court recognized, the purpose of the exemption lends little support to the plaintiffs position. The tax exemption for hazardous waste removal services was included in an amendment to No. 84-507 of the 1984 Public Acts offered by Representative Warren G. Sarasin. The purpose of the exemption was to provide an incentive to property owners to remove voluntarily and dispose of hazardous waste properly rather than to dump it illegally. 27 H.R. Proc., Pt. 17,1984 Sess., pp. 6009-10, remarks of Representative Warren G. Sarasin. The intended beneficiaries of the exemption., therefore, are property owners and not asbestos removal contractors. The plaintiff argues that the added cost incurred due to the sales and use tax will be passed on to the owner and will act as a disincentive to voluntary removal, contrary to legislative intent. The property owners, however, remain tax exempt for between 85 and 90 percent of their total removal cost. This substantial incentive to engage in the voluntary, legal disposal of hazardous waste furthers the legislative purpose of the exemption, and a sales and use tax on material purchased by the asbestos removal contractor does not defeat the tax advantage.

The plaintiff relies heavily on a statement made by Senator John B. Larson, when he moved to place the public act on the consent calendar, characterizing the exemption as one for “business services as well as tangible supplies . . . .” 27 S. Proc., Pt. 9, 1984 Sess., p. 3186. We are unpersuaded that this statement alone, which is contrary to the language of the amendment and to ample evidence that the legislature specifically distinguishes between services and tangible personal property, reflects a legislative intent to include personal property within the meaning of services. Indeed, when Representative Sarasin introduced the amendment, and testified regarding the purpose of the exemption, he described the exemption as extending to business services only. 27 H.R. Proc., Pt. 17,1984 Sess., p. 6009. We find the specific language of the statute in combination with the testimony of Representative Sarasin regarding the purpose and scope of the amendment, to be more probative of legislative intent than Senator Larson’s isolated remark.

Because the plaintiff has provided nothing more substantial than the comment of a single senator to defeat the plain statutory language or to show a contrary legislative purpose or intent, we conclude that the trial court properly found that the plaintiff has failed to sustain its burden of proof. We conclude, further, that for the purposes of the sales and use tax under § 12-407 (2) (i) (I), the term “services” does not include tangible personal property purchased and consumed by asbestos removal contractors.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 12-407 provides in pertinent part: “definitions. Whenever used in this chapter [chapter 219, entitled ‘Sales and Use Taxes’]:
      “(2) ‘Sale’ and ‘selling’ mean and include . . . (i) the rendering of certain services for a consideration, exclusive of such services rendered by an employee for his employer, as follows ... (I) services to industrial, commercial or income-producing real property, including but not limited to, such services as management, electrical, plumbing, painting and carpentry and excluding any such services rendered for the voluntary containing or removing of hazardous waste, provided income-producing property shall not include property used exclusively for residential purposes

       The plaintiff Petco Insulation Company, Inc., withdrew its appeal to this court. We refer, therefore, to AAIS Corporation as the plaintiff.

       Before engaging in asbestos removal, a contractor must file a plan with the department of environmental protection that meets all state and federal regulations for the protection of workers and the public from potential exposure to airborne asbestos fibers. Regs., Conn. State Agencies § 19a-332a-3; see generally General Statutes § 19a-332b. These regulations require the contractor to seal off the area where the asbestos is located with a layer of plastic and to filter all air passing from the area. Regs., Conn. State Agencies § 19a-332a-5. Before entering the sealed area, workers must remove their personal clothing and don full body protective suits and respirators. Upon leaving the sealed area, workers must remove the protective clothing and leave the used clothing at the work site. The clothing may not be reused. Workers must shower and wash their respirators before entering the dressing area. Regs., Conn. State Agencies § 19a-332a-6.
      After completing the asbestos removal process, the workers must collect the asbestos and all contaminated materials, including their protective suits, filters, plastic and tape, and seal the items in containers for disposal at designated hazardous waste landfills. Regs., Conn. State Agencies §§ 19a-332a-7 through 19a-332a-9.

       General Statutes § 12-415 provides in pertinent part: “deficiency assessments. (1) deficiency assessments. If the commissioner is not satisfied with the return or returns of the tax or the amount of tax required to be paid to the state by any person, he may compute and assess the amount required to be paid upon the basis of the facts contained in the return or returns or upon the basis of any information within his possession or that may come into his possession. . . .”

       General Statutes § 12-418 provides in pertinent part: “reassessments. (1) petition for reassessment. Any person against whom an assessment is made under section 12-415 or 12-416 or any person directly interested may petition for a reassessment within sixty days after service upon such person of notice thereof. . . .
      “(2) oral hearing. If a petition for reassessment is filed within the sixty-day period, the commissioner shall reconsider the assessment and, if the person has so requested in his petition, shall, in his discretion, grant the person an oral hearing and shall give him ten days’ notice of the time and place of the hearing. ...”

       General Statutes § 12-422 provides in pertinent part: “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.”

       A second issue raised by the plaintiff on appeal is whether the trial court properly determined that the plaintiff owed $42,884.75 plus interest in sales and use tax. According to the plaintiff, the parties stipulated to an amount owed of $36,688.71 plus interest. The stipulation of the parties does not include this dollar amount but refers instead to three exhibits that list concessions made by both parties regarding calculations included on numerous spread sheets. Because the parties no longer dispute this point, we accept the plaintiffs representation as to the stipulated amount and, therefore, we do not otherwise address this issue.

       The sales and use tax is collected by the retailer from the ultimate consumer. General Statutes § 12-408. If materials are purchased for resale, no sales or use tax is required to be collected at that time. The burden of proving the materials purchased are for resale is “upon the person who makes the sale unless he takes from the purchaser a certificate to the effect that the property is purchased for resale.” General Statutes § 12-410 (1).

       See State v. Zarick, 227 Conn. 207, 221, 630 A.2d 565, cert. denied, U.S. , 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993) (an appellant who fails to raise a claim on appeal abandons it); see also State v. Tatum, 219 Conn. 721, 742, 595 A.2d 322 (1991); see generally Practice Book § 4065.

       General Statutes § 12-407 (2) provides in pertinent part: “ ‘Sale’ and ‘selling’ mean and include: (a) Any transfer of title, exchange or barter, conditional or otherwise, in any manner or by any means whatsoever, of tangible personal property for a consideration; (b) any withdrawal, except a withdrawal pursuant to a transaction in foreign or interstate commerce, of tangible personal property from the place where it is located for delivery to a point in this state for the purpose of the transfer of title, exchange or barter, conditional or otherwise, in any manner or by any means whatsoever, of the property for a consideration; (c) the producing, fabricating, processing, printing or imprinting of tangible personal property for a consideration for consumers who furnish either directly or indirectly the materials used in the producing, fabricating, processing, printing or imprinting, including but not limited to, computer programming, sign construction, photofinishing, duplicating and photocopying; (d) the furnishing and distributing of tangible personal property for a consideration by social clubs and fraternal organizations to their members or others; (e) the furnishing, preparing, or serving for a consideration of food, meals or drinks; (f) a transaction whereby the possession of property is transferred but the seller retains the title as security for the payment of the price; (g) a transfer for a consideration of the title of tangible personal property which has been produced, fabricated or printed to the special order of the customer, or of any publication, including but not limited to, computer programming, sign construction, photofinishing, duplicating and photocopying; (h) a transfer for a consideration of the occupancy of any room or rooms in a hotel or lodging house or space in a campground for a period of thirty consecutive calendar days or less; (i) the rendering of certain services for a consideration, exclusive of such services rendered by an employee for his employer, as follows . . . (j) the leasing or rental of tangible personal property of any kind whatsoever, including but not limited to, motor vehicles, linen or towels, machinery or apparatus, office equipment and data processing equipment, provided for purposes of this subdivision and the application of sales and use tax to contracts of lease or rental of tangible personal property, the leasing or rental of any motion picture film by the owner or operator of a motion picture theater for purposes of display at such theater shall not constitute a sale within the meaning of this subsection; (k) the rendering of telecommunications service . . . subject to the provisions related to telecommunications service in accordance with section 12-407a; (I) the rendering of community antenna television service . . . (m) the rendering of transportation service . . . (n) the transfer for consideration of space or the right to use any space for the purpose of storage or mooring of any noncommercial vessel. Wherever in this chapter reference is made to the sale of tangible personal property or services, it shall be construed to include sales described in this subsection, except as may be specifically provided to the contrary.”

       General Statutes § 12-412 provides in pertinent part: “exemptions. Taxes imposed by this chapter shall not apply to the gross receipts from the sale and the storage, use or other consumption in this state with respect to the following items:
      “(1) THE UNITED STATES, THE STATE OR subdivisions. Sales of tangible personal property or services to the United States, the state of Connecticut or any of the political subdivisions thereof, or its or their respective agencies.
      “(2) federal exemptions. Sales of tangible personal property or services which this state is prohibited from taxing under the constitution or laws of the United States.
      “(3) CERTAIN UTILITIES. . . .
      “(B) TELEPHONE AND CABLE TELEVISION SERVICE PRIOR TO JANUARY 1, 1990. The sale or furnishing of telephone service and community antenna television and cable service, provided the exemption for services described in this subparagraph shall not be applicable to any such service rendered on or after January 1, 1990. . . .
      “(5) NONPROFIT charitable hospitals. Sales of tangible personal property or services to and by nonprofit charitable hospitals in this state for the exclusive purposes of such institutions. . . .
      “(8) charitable and religious organizations. Sales of tangible personal property or services to charitable and religious organizations. . . .
      “(11) personal services. Professional, insurance or personal service transactions, except any such service transaction described in subsection (2) of section 12-407, which involve sales as inconsequential elements for which no separate charges are made. . . .
      “(21) personal property for incorporation into or used in waste treatment facilities. Sales of and the storage, use or other consumption of tangible personal property acquired for incorporation into or used and consumed in the operation of facilities for the treatment of industrial waste ....
      “(22) PERSONAL PROPERTY INCORPORATED INTO OR CONSUMED IN AIR pollution control facilities. Sales of and the storage, use or other consumption of tangible personal property or supplies acquired for incorporation into or used and consumed in the operation of facilities ....
      “(29) personal property used or consumed in operation of housing facilities for low and moderate income families and persons. Sales of and the storage, use or other consumption of tangible personal property acquired for incorporation into or used and consumed in the operation of housing facilities for low and moderate income families and persons, provided such facilities are constructed under the sponsorship of and owned or operated by nonprofit housing organizations. . . .
      “(35) centers OF service for elderly persons. Sales of tangible personal property or services to any center of service for elderly persons as described in subdivision (d) of section 17a-310. . . .
      “(36) MOTOR VEHICLE DRIVING SERVICE PERFORMED OUT OF STATE. The sale of any motor vehicle driving service to the extent of that proportionate part of gross receipts from such service rendered which is directly related to actual driving performance outside the state. . . .
      “(41) SERVICES TO DETERMINE EFFECT ON HUMAN HEALTH OF CONSUMPTION OR use OF A product or substance. Sales of services used to determine the probable consequences in relation to human health of the consumption or other use of any product, substance or element. . . .
      “(55) PERSONAL PROPERTY USED IN BURIAL OR CREMATION WITH VALUE UP TO TWO THOUSAND FIVE HUNDRED DOLLARS FOR ANY SINGLE FUNERAL. Sales of tangible personal property by any funeral establishment performing the primary services in preparation for and the conduct of burial or cremation, provided any such property must be used directly in the performance of such services and the total amount of such exempt sales with respect to any single funeral may not exceed two thousand five hundred dollars. . . .
      “(58) SERVICES RELATED TO PERSONNEL, MANAGEMENT OR RESEARCH WHEN COMPANY RENDERING SERVICE AND RECIPIENT ARE PARTICIPATING IN A JOINT VENTURE FOR PURPOSES OF RESEARCH AND NEW PRODUCT DEVELOPMENT. . . .
      “(62) SERVICES RENDERED BETWEEN PARENT COMPANIES AND WHOLLY-OWNED SUBSIDIARIES. . . .
      “(73) COMPONENT PARTS FOR ASSEMBLY OF MANUFACTURING MACHINERY. . . .
      “(74) CERTAIN SALES OF COMPUTER AND DATA PROCESSING SERVICES. Sales of computer and data processing services rendered by a retailer which, on or after July 1,1991, acquired the operations of a data processing facility from the customer receiving such services, provided such customer operated the facility for its own use. . . .
      “(76) AIRCRAFT REPAIR ON replacement parts. On and after July 1, 1993, sales of and the storage, use or other consumption of repair or replacement parts exclusively for use in aircraft owned or leased by a certificated air carrier or in the significant overhauling or rebuilding of aircraft or aircraft parts or components on a factory basis.
      “(77) aircraft repair services. On or after July 1,1993, sales of aircraft repair services when such services are rendered in connection with aircraft owned or leased by a certificated air carrier or with the significant overhauling or rebuilding of aircraft or aircraft parts or components on a factory basis. . . .” (Emphasis added.)

       The legislature also made this distinction in No. 84-507 of the 1984 Public Acts. The public act extended a sales tax exemption to renewable energy systems and the hazardous waste exemption in § 12-407 (2) (i) (I) was included as an amendment. The public act exempted both the installation service and component parts of solar and alternative energy systems from sales and use tax. In contrast, the amendment regarding hazardous waste removal exempted only services from the tax.

       The trial court found that the materials amount to only 10 to 15 percent of the total removal charge. This percentage is undisputed.