text:
    David Shortt v. New Milford Police Department
    (13524)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.

      Argued June 9
    decision released July 25, 1989

      Jeffrey B. Sienkiewicz, with whom was Nancy R. Sienkiewicz, for the appellant (defendant).

      Janet Bond Arterton, with whom was JoNel Newman, for the appellee (plaintiff).
   Peters, C. J.

This appeal involves two questions of construction concerning the scope of General Statutes § 31-72: (1) whether a municipality constituted an

“employer” for the purposes of this statute under the definition contained in General Statutes § 31-71a (1) prior to its amendment by Public Acts 1987, No. 87-366, § 2; and (2) whether this statute provides an independent substantive cause of action for the collection of wages that permits the bypass of otherwise applicable grievance procedures under a collective bargaining agreement. The trial court dismissed, for lack of subject matter jurisdiction, the action brought by the plaintiff, David Shortt, to collect wages allegedly owed to him by the defendants, the New Milford police department and the town of New Milford. The Appellate Court, finding error, sustained the plaintiffs appeal and remanded the case for further proceedings. Shortt v. New Milford Police Department, 16 Conn. App. 232, 547 A.2d 107 (1988). We granted the petition for certification filed by the defendant New Milford police department. Shortt v. New Milford Police Department, 209 Conn. 817, 550 A.2d 1085 (1988). Because we disagree with the Appellate Court’s resolution of the two issues that we certified, we now reverse.

The Appellate Court’s opinion reveals the following factual and procedural history derived from the allegations in the plaintiff’s complaint. The defendant New Milford police department hired the plaintiff, David Shortt, as a police officer. After completing his training, the plaintiff began working as a probationary patrol officer on July 23,1984. Shortt v. New Milford Police Department, supra, 16 Conn. App. 233. One month later, a required medical examination revealed that he had certain “ ‘extra heartbeats.’ ” Id. During a subsequent period of tests to determine the extent and the seriousness of his heart condition, the plaintiff continued to be employed as a police officer and received his salary. Id., 233-34. On October 12,1984, he was hospitalized for three days of further testing, for which he received sick pay. Id., 234.

From October 15,1984, to April 17, 1985, although the plaintiff nominally returned to work, he was not permitted to resume full active duties. He was allowed to carry his police badge but received no wages. He was not returned to active status until he executed a workers’ compensation waiver of liability for his preexisting heart condition. Id.

As a member of the International Brotherhood of Police Officers, Local 361 (union), the plaintiff was subject to its collective bargaining agreement with the defendant, pursuant to the provisions of General Statutes §§ 7-467 through 7-477. Id. The collective bargaining agreement provided a three step process for the resolution of grievances and disputes arising out of the course of the employment relationship. On November 15,1984, the plaintiff filed a claim for nonpayment of wages, in compliance with step one of the mandated grievance procedures. The defendant denied the claim because it considered him to be on “ ‘indefinite sick leave without pay.’ ” Id. When settlement discussions failed, the plaintiff abandoned further grievance proceedings and instead, just prior to the lapse of the two year statute of limitations, commenced suit under § 31-72 to collect wages allegedly due him for the period commencing with his hospital discharge and ending with his execution of the workers’ compensation waiver. Id., 234-35.

In the trial court, the defendants moved to dismiss the plaintiff’s action on the basis that the court lacked jurisdiction over the subject matter of the dispute. Id., 235. They alleged, in a supporting affidavit, that the plaintiff had failed to pursue the further steps contained in the administrative grievance process set forth in article XXIII of the collective bargaining agreement between the town and the police union. Id., 235-36.

In its memorandum of decision granting the defendants’ motion to dismiss, the trial court concluded that the terms of the collective bargaining agreement mandated exhaustion of the three step grievance process before the plaintiff might invoke applicable law, in this instance § 31-72. For this reason, the court concluded that it lacked subject matter jurisdiction to proceed. Id., 236.

The Appellate Court, while recognizing the general rule that available administrative remedies must ordinarily be exhausted, declined to apply this rule to a statutory action for the collection of wages. Expressing the view that the collection of wages is not an appropriate subject for collective bargaining, the court ruled that the plaintiff’s rights under § 31-72 were not preempted by the collective bargaining agreements. Id., 236-38. The Appellate Court apparently assumed, without discussion, that municipalities were employers liable for defaulted wage payments under the terms of § 31-72.

Pursuing the two issues on which we granted certification, the defendant police department maintains that the Appellate Court erred in construing § 31-72 to permit the plaintiff to recover alleged unpaid wages from the defendant. First, the defendant argues that it was exempt from § 31-72 because municipal employers were not covered by that statute at the time when this lawsuit was commenced. Second, the defendant argues that the plaintiff was not entitled to invoke § 31-72 without having first exhausted the grievance process contained in the collective bargaining agreement that his union had negotiated. We agree with both of these claims of error.

I

We turn first to the issue of the applicability of § 31-72 to municipal employers prior to the 1987 amendment of § 31-71a (1). The unamended definition of “employer” in § 31-71a (1) expressly included “any . . . corporation.” The amendment added “the state and any political subdivision thereof” to the categories of those encompassed by the term “employer.” Public Acts 1987, No. 87-366, § 2. The dispositive question posed by this legislative history is whether the legislature intended by its 1987 amendment to clarify or to enlarge the definition of “employer” in § 31-71a (1).

As a point of departure, we note that the relationship between “corporation” and “municipal corporation” is not obvious on the face of the language of § 31-71a (1) as it existed before 1987. Our task, in resolving this ambiguity, is to construe § 31-72 so as to “ ‘ “ascertain and give effect to the apparent intent of the legislature.” ’ ” Capalbo v. Planning & Zoning Board of Appeals, 208 Conn. 480, 486, 547 A.2d 528 (1988); State v. Champagne, 206 Conn. 421, 428, 538 A.2d 193 (1988); State v. Blasko, 202 Conn. 541, 553, 522 A.2d 753 (1987). In ascertaining that intent, we deem the legislature to have intended to harmonize its enactment with existing common law and statutory requirements. Commissioner v. Freedom of Information Commission, 204 Conn. 609, 621, 529 A.2d 692 (1987); Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 575, 522 A.2d 763 (1987). Accordingly, the legislature must have understood that, although a municipality is a corporation for some purposes, such as its right to sue and be sued, its exercise of distinctive governmental functions has afforded it extensive immunity from civil liability. See, e.g., Roman v. Stamford, 211 Conn. 396, 397-98, 559 A.2d 710 (1989); Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 165-70, 544 A.2d 1185 (1988). In this context, we would be reluctant to assume that the legislature intended to impose additional liability on municipal corporations without expressly saying so.

This conclusion finds further support in the provisions of the Municipal Employee Relations Act (MERA), General Statutes § 7-467 et seq. Extending the rights and obligations of collective bargaining to employees of local government, MERA “was designed to accomplish the salutary purpose of promoting harmony between local governments and their employees. . . . To effectuate these principles of collective bargaining, the MERA makes it mandatory for local governmental employers and their employees ‘to meet at reasonable times . . . and confer in good faith with respect to wages, hours and other conditions of employment . . . . ’ General Statutes § 7-470 (c).” (Emphasis added.) New Haven v. State Board of Labor Relations, 36 Conn. Sup. 18, 24, 410 A.2d 140 (1979). Since the legislature is presumed to exercise its statutory authority with knowledge of existing relevant statutes and with the intention of creating one consistent body of law; Commissioner v. Freedom of Information Commission, supra, 621; Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 57, 523 A.2d 477 (1987); it is reasonable to infer that the legislature would not have intended sub silentio to displace such a comprehensive regulatory scheme. In this regard, it is particularly noteworthy that General Statutes § 7-470 provides a comprehensive list of prohibited acts by employers and employee organizations. The existence of MERA, therefore, buttresses our conclusion that the term “employer” in § 31-72 before its amendment did not include municipal corporations.

In this context, the inferences to be drawn from the 1987 amendment to § 31-72 are readily ascertainable. We presume that, when the legislature amends the language of a statute, it intends to change the statute’s meaning; Shelton v. Commissioner, 193 Conn. 506, 513, 479 A.2d 208 (1984); and to accomplish some new purpose. Farricielli v. Personnel Appeal Board, 186 Conn. 198, 204, 440 A.2d 286 (1982). Although this presumption is not irrebuttable, there must be contrary evidence, either in the language of the amendment or in its legislative history, to establish that the legislature intended instead to clarify the existing meaning of the prior statute. Shelton v. Commissioner, supra, 513-14; Tax Commissioner v. Estate of Bissell, 173 Conn. 232, 246, 377 A.2d 305 (1977).

We are not persuaded by the plaintiff’s contention that the legislative history of Public Acts 1987, No. 87-366, § 2, bears evidence of a legislative intent to clarify rather than to change the scope of the definition of “employer” applicable to § 31-72. The plaintiff points to an ambiguous reference by the amendment’s legislative sponsor to an attorney general’s opinion that neither we nor the parties have succeeded in locating, to the effect that municipalities were already bound by § 31-72. Other parts of the legislative history support a contrary construction. On this state of the legislative record, the plaintiff has not succeeded in overcoming the presumption that statutory amendments are intended to modify existing law. Vartuli v. Sotire, 192 Conn. 353, 364 n.12, 472 A.2d 336 (1984); Heffernan v. Slapin, 182 Conn. 40, 49, 438 A.2d 1 (1980). We conclude, therefore, that the scope of General Statutes (Rev. to 1985) § 31-72 did not extend to municipal employers, such as the defendant police department in the present case.

II

The defendant’s second claim challenges the Appellate Court’s conclusion that the plaintiff could pursue an action under § 31-72 without first establishing his entitlement to uncollected wages through recourse to available grievance procedures. Although this is a claim of error that we need not address, given our resolution of the definition of “employer,” we deem it prudent to determine the scope of § 31-72 in light of the legislature’s amendment of the statute to include municipal employers. We conclude that the plaintiff was afforded a meaningful administrative remedy by the grievance process, that this remedy was an appropriate resource antecedent to his statutory right under § 31-72, and that his failure to exhaust this administrative remedy deprived the trial court of subject matter jurisdiction.

The issue posed by the defendant’s second claim of error can be restated as follows. How should we reconcile the provisions of § 31-72, which provide an employee with a statutory right to collect unpaid wages, with the provisions of a collective bargaining agreement, negotiated by his union, which requires arbitration of “[gjrievances arising out of matters covered by . . . applicable law arising out of employee-employer relations?” (Emphasis added.) In order to resolve this issue, we must determine what purpose the legislature intended § 31-72 to serve. If the statute creates a substantive right independent of existing labor relations statutes, then it would follow, as the Appellate Court held, that the plaintiff would be free to pursue this independent right without reference to collective bargaining procedures for grievance proceedings and arbitration. If, however, the statute provides only an additional remedy for wages otherwise determined to be due and owing, then the trial court would be correct in its determination of the jurisdictional issue.

We begin our examination of the scope of § 31-72 by recourse to the accepted rules of statutory construction. We look first to the text of § 31-72 itself, which provides, in relevant part, that an employee may bring a civil action “[wjhen any employer fails to pay an employee wages . . . or where an employee or a labor organization representing an employee institutes an action to enforce an arbitration award which requires an employer to make an employee whole . . . . ” On its face, the statute’s inclusion of a remedy for enforcement of an arbitration award demonstrates that the legislature understood the collection of wages to be a proper subject for arbitration under a collective bargaining agreement. Since the wording of a statute is presumed to express the intent of the legislature; Ganim v. Roberts, 204 Conn. 760, 763, 529 A.2d 194 (1987); Orticelli v. Powers, 197 Conn. 9, 13, 495 A.2d 1023 (1985); and since a statute is to be considered as a whole, with a view toward reconciling its separate parts in order to render an overall reasonable interpretation; American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987); Peck v. Jacquemin, 196 Conn. 53, 63, 491 A.2d 1043 (1985); this statutory linkage between wage claims and arbitration awards is informative. Certainly the language employed by the legislature gives no clear indication of an intent to create a substantive right to collect wages that is independent of the remedies stipulated by the grievance procedures under a collective bargaining agreement. If anything, the provision of a remedy to enforce an arbitral award relating to wages suggests that the legislature intended to preserve the normal principle that available administrative remedies must be exhausted before judicial intervention is sought.

This construction of § 31-72 is further buttressed when that statute is read in conjunction with the text of General Statutes § 31-71d, one of the related statutes that § 31-72 expressly incorporates by reference. Section 31-71d (a) provides that, “[i]n case of a dispute over the amount of wages, the employer shall pay . . . all wages, or parts thereof, conceded by him to be due . . . .” The limitation of liability for immediate payment of wages “conceded by him to be due” is inconsistent with the assertion that § 31-72 provides an independent substantive right to collect any and all wages to which an employee claims that he is entitled. In the present case, of course, the defendant has consistently denied that any unpaid wages are due the plaintiff.

The plaintiff urges us nonetheless to construe § 31-72 in light of federal precedents interpreting a number of federal statutes that confer rights on employees in addition to those that they can achieve through collective bargaining. The extent to which these federal cases illuminate § 31-72 is limited, however, by two caveats. First, in the construction of our own statute, we exercise plenary authority that is not preempted by federal precedents. Second, in the search for persuasive analogies from federal law, we must ascertain how closely the subject matter of our statute mirrors that of the federal statutes at issue in the federal cases.

A number of United States Supreme Court cases have held that, when federal law confers a specific judicial remedy to employees for the denial of designated statutory rights, an employee may invoke a judicial forum to vindicate these rights without regard to the existence of grievance procedures under a collective bargaining agreement. In Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S. Ct. 1011, 39 L. Ed. 2d 147(1974), the court permitted a trial de novo under Title VII of the Civil Rights Act of 1964, § 701 et seq. as amended, 42 U.S.C.A. § 2000e et seq., to enforce a claim of wrongful discharge due to racial discrimination, despite the prior unsuccessful submission of this claim to grievance proceedings pursuant to a collective bargaining agreement. In Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 101 S. Ct. 1437, 67 L. Ed. 2d 641 (1981), the court held that pursuit of a statutory right to vindicate a minimum wage claim under the Fair Labor Standards Act; 29 U.S.C. § 201 et seq.; was not precluded by lack of success under the grievance procedures of a collective bargaining agreement. In Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S. Ct. 1877, 100 L. Ed. 2d 410 (1988), the court held that a state tort remedy was not preempted by §301 of the Labor Management Relations Act. 29 U.S.C. § 185. The court has reasoned, in these cases, that “[t]he distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence. And certainly no inconsistency results from permitting both rights to be enforced in their respectively appropriate forums.” Alexander v. Gardner-Denver Co., supra, 50. “[A] contractual right to submit a claim to arbitration is not displaced simply because Congress also has provided a statutory right against discrimination. Both rights have legally independent origins and are equally available to the aggrieved employee.” Id., 52. Notably, however, the court has also held, in Perry v. Thomas, 482 U.S. 483, 107 S. Ct. 2520, 96 L. Ed. 2d 426 (1987), that, under the Supremacy Clause, the provision of the Federal Arbitration Act governing enforcement of arbitration agreements preempted a provision of the California Labor Code stating that wage collection actions may be maintained without regard to the existence of any private agreement to arbitrate.

We are not persuaded that the federal cases that preserve an independent judicial remedy provide persuasive analogies for § 31-72. Despite the plaintiff’s contention to the contrary, we see significant differences between the nature and purpose of the relevant federal statutes and that of § 31-72. The closest analogy by far is to the Fair Labor Standards Act. “The principal congressional purpose in enacting the Fair Labor Standards Act of 1938 was to protect all covered workers from substandard wages and oppressive working hours, ‘labor conditions [that are] detrimental to the maintenance of minimum standards of living necessary for health, efficiency, and general well-being of workers.’ 29 U.S.C. § 202 (a).” Barrentine v. Arkansas-Best Freight System, Inc., supra, 739; see also id., 739 n.14. As such, the Fair Labor Standards Act guarantees covered employees specific substantive rights that attach to the individual and that the individual cannot waive by contractual dispute-resolution procedures. Title VII of the Civil Rights Act similarly provides substantive rights, rooted in federal constitutional law, that transcend the normal scope of wage disputes.

Our statute, by contrast with these federal authorities, merely provides an enhanced remedy for the collection of wages. It does not embody substantive standards to determine the amount of wages that are payable but provides penalties in order to deter employers from deferring wage payments once they have accrued. Section 31-72 is, therefore, a remedial statute rather than one creating independent substantive rights.

In addition, the policy considerations to which the United States Supreme Court adverted in Barrentine v. Arkansas-Best Freight System, Inc., supra, do not apply in this case. The United States Supreme Court was concerned that a right to minimum labor standards should not be subject to diminution by the inherent vagaries of the collective bargaining process, which allow a union, in good faith, not to pursue any one particular claim to arbitration. Id., 742. No such third party abandonment of this plaintiff's wage claim can occur because this plaintiff, under his collective bargaining agreement, was guaranteed individual access to the contractual grievance process. The United States Supreme Court’s additional concern, that an arbitrator might lack the competence to guarantee adequate protection for an employee’s statutory rights when the dispositive question was an issue of law rather than fact; id., 743-44; does not arise when the issue is entitlement to wages per se. Whether an employee has earned the right to collect wages involves the kind of question of fact that is grist for the arbitration mill.

In sum, we construe § 31-72 as a statute for collection of wages that coexists with contractual submission of wage disputes to grievance procedures specified in applicable collective bargaining agreements. Because the plaintiff in this case failed to exhaust his administrative remedies under such a collective bargaining agreement, the Appellate Court erred in reinstating his statutory claim for uncollected wages.

The judgment of the Appellate Court is reversed and the case is remanded with direction to that court to remand the case to the trial court with direction to render judgment for the defendant.

In this opinion the other justices concurred.

       General Statutes § 31-72 provides: “civil action to collect wage claim or arbitration award. When any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-71Í, inclusive, or where an employee or a labor organization representing an employee institutes an action to enforce an arbitration award which requires an employer to make an employee whole or to make payments to an employee welfare fund, such employee or labor organization may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorney’s fees as may be allowed by the court, and any agreement between him and his employer for payment of wages other than as specified in said sections shall be no defense to such action. At the request of any worker who has failed to receive payment under the provisions of said sections, the labor commissioner may take an assignment of such wage claim in trust for the assigning employee and may bring any legal action necessary to recover the amount provided by this section, and the employer shall be required to pay the costs and such reasonable attorney’s fees as may be allowed by the court.”

       Public Acts 1987, No. 87-366, § 2, amended the definition of “employer” in General Statutes § 31-71a (1) to include “the state and any political subdivision thereof.”
      Prior to its amendment, General Statutes (Rev. to 1985) § 31-71a provided in relevant part: “(1) ‘Employer’ includes any individual, partnership, association, joint stock company, trust, corporation, the administrator or executor of the estate of a deceased person, the conservator of the estate of an incompetent, or the receiver, trustee, successor or assignee of any of the same, employing any person;
      “(2) ‘Employee’ includes any person suffered or permitted to work by an employer . . . .”

       Our order of certification limited the defendant's appeal to the following two issues: “(1) Did the Appellate Court err in concluding that the plaintiff police officer had an independent statutory right for collection of unpaid wages, costs and attorney’s fees under § 31-72 of the Connecticut General Statutes when neither his entitlement to wages nor the amount thereof had been determined under the grievance procedure contained in the collective bargaining agreement? (2) Did the Appellate Court err in holding that § 31-72 of the Connecticut General Statutes was applicable to the defendant as an ‘employer’ within the statutory definition of that term contained in General Statutes § 31-71a (1)?”

       General Statutes § 52-596 provides: “actions for payment of remuneration for employment. No action for the payment of remuneration for employment payable periodically shall be brought but within two years after the right of action accrues, except that this limitation shall be tolled upon the filing with the labor commissioner of a complaint for failure to pay wages pursuant to the provisions of chapter 558.”

       Article XXIII of the collective bargaining agreement provides:
      “Grievance Procedure and Arbitration
      “Grievances arising out of matters covered by this Agreement or conditions of work or applicable law arising out of employee-employer relations will be processed in the following manner:
      “Step 1.
      “An employee or the IBPO having a grievance or complaint, shall take such grievance or complaint to the Chief of Police in writing or, in his absence, the officer in charge. The Chief of Police or the officer in charge, in his absence, shall answer the grievance within five (5) working days from receipt of the grievance in writing.
      “Step 2.
      “If the grievant or the Union are not satisfied with the decision rendered by the Chief of Police, such grievance shall be submitted in writing not less than seven (7) days prior to the next regularly scheduled meeting date of the Commission. The Board of Police Commissioners shall consider the matter at the next monthly meeting or a special meeting and render its decision in writing within seven (7) days after its meeting.
      “Step 3.
      “If the grievant or the Union are not satisfied with the decision rendered by the Board of Police Commissioners, he may, within fifteen (15) days, submit the matter to the State Board of Mediation and Arbitration for arbitration. The decision of the Arbitration Panel shall be final and binding on both parties. Said Board shall not have the authority to change, modify, or otherwise amend this Agreement.”

       The plaintiff claims in his brief that the defendant did not raise the issue of whether the New Milford police department was an “employer” under General Statutes § 31-72 at the Appellate Court, and that this issue is therefore not properly before us. At oral argument in this court, however, the plaintiff took no exception to the defendant’s representation that the municipality-employer question occupied one half of the oral argument before the Appellate Court. Therefore, the certified issue of whether a municipality constitutes an “employer” for purposes of § 31-72 as defined by General Statutes § 31-71a prior to its amendment by Public Acts 1987, No. 87-366, is properly before this court.

       For the relevant text of General Statutes § 31-71a, see footnote 2, supra.

       The plaintiff focuses on two separate remarks by Representative Joseph A. Adamo, the amendment’s sponsor: “The amendment is quite simple. In the statutes regarding wage execution and wage enforcement, it was found that the description or definition of employer was different and that the attorney general at one time had in fact done a ruling that stated that the municipal employees were in fact subject to the enforcement, wage enforcement laws. This amendment clearly defines that the state and the municipalities would be subject to wage enforcing statutes”; 30 H.R. Proc., Pt. 20, 1987 Sess., p. 7318; and “I have to make it clear here that what we had in front of us before was [General Statutes §] 31-71 with an attorney general’s ruling that said municipalities were in fact, covered under the law .... If we’re going to mandate on every business out there and on the municipalities that they have to live with the wage enforcement laws, it seems only right that the State of Connecticut also, as well.” Id., p. 7345.
      The defendant cites an inquiry made by Representative Robert G. Jae-kle: “I’m curious about the effect of the amendment which is now Sec. 2 of the file before us. And I notice that the amendment changes the definition of employer to include the State of Connecticut and political subdivisions of the state for the purpose of [General Statutes §] 31-71a through [31-71Í].” Id., p. 7339. The legislative record indicates no attempt by Representative Adamo to disabuse Representative Jaekle of his articulated understanding. The missing ingredient in attempting to resolve this seeming inconsistency would appear to be the referenced attorney general opinion. Plaintiff’s counsel was kind enough to forward, after our inquiry at oral argument, those attorney general opinions to which the legislative history may have made reference. Unfortunately, these opinions do not illuminate the ambiguity in the legislative history before us.

       See article XXIII of the collective bargaining agreement, footnote 5, supra.

       “[T]he doctrine of exhaustion of remedies fosters an orderly process of administrative adjudication and judicial review, offering a reviewing court the benefit of the agency’s findings and conclusions. It relieves courts of the burden of prematurely deciding questions that, entrusted to an agency, may receive a satisfactory administrative disposition and avoid the need for judicial review.” Owner-Operators Independent Drivers Assn. of America v. State, 209 Conn. 679, 691-92, 553 A.2d 1104 (1989); Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 358-59, 377 A.2d 1099 (1977); cf. Cianci v. Connecticut Council, AFSCME, 8 Conn. App. 197, 512 A.2d 232 (1986) (once administrative remedy invoked, the existence of concurrent judicial jurisdiction does not obviate exhaustion of remedies doctrine); Fortunato v. Board of Public Safety, 36 Conn. Sup. 637, 640, 423 A.2d 909 (1980) (exhaustion of administrative remedies required prior to invoking applicable statutory remedy).

       Interestingly, the federally preempted provision of the California Labor Code; Cal. Lab. Code Ann. § 229 (West 1971); is remarkably similar in purpose to General Statutes § 31-72 with one notable exception. Unlike our statute, the California Labor Code expressly provides that such civil action for the collection of wages may be maintained without regard to the grievance procedures contracted to in a collective bargaining agreement. Perry v. Thomas, 482 U.S. 483, 484, 107 S. Ct. 2520, 96 L. Ed. 2d 426 (1987).

       In a successful civil action under General Statutes § 31-72, a plaintiff may collect twice the full amount of wages due with costs and such attorney’s fees as are allowed by the court.

       Although Senator Nancy L. Johnson said in committee hearings, held in 1978 to amend General Statutes § 31-72 to increase the penalties on employers, that “the payment of earned wages is a basic gut-level right that should be assured by clear, strong state statutes,” (emphasis added) much of the emphasis of her remarks reveals that a primary purpose was to penalize the employers. “The penalty for non-payment of wages is set forth in Section 31-72. An unpaid employee must bring suit in court and if he or she wins, he or she recovers wages and credit [sic] costs. This is hardly a sufficient penalty for so serious an offense as non-payment of wages. In fact, the employer loses nothing but court costs, while the employee has to bring a suit and go without earned wages for months or years.” (Emphasis added.) Conn. Joint Standing Committee Hearings, Labor, 1978 Sess., pp. 154-55.

       “Since a union’s objective is to maximize overall compensation of its members, not to ensure that each employee receives the best compensation deal available, cf. Alexander v. Gardner-Denver Co., [415 U.S. 36, 58 n.19, 94 S. Ct. 1011, 39 L. Ed. 2d 147 (1974)], a union balancing individual and collective interests might validly permit some employees’ statutorily granted wage and hour benefits to be sacrificed if an alternative expenditure of resources would result in increased benefits for workers in the bargaining unit as a whole.” Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 742, 101 S. Ct. 1437, 67 L. Ed. 2d 641 (1981).

       See footnote 5, supra.

       “[T]he specialized competence of arbitrators pertains primarily to the law of the shop, not the law of the land.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 57, 94 S. Ct. 1011, 39 L. Ed. 2d 147 (1974); Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 743, 101 S. Ct. 1437, 67 L. Ed. 2d 641 (1981).

       In oral argument before this court, the defendant acknowledged that, if the plaintiff had pursued his grievance and prevailed therein with respect to his wage claim, he would then have been entitled to collect the enhanced remedy of double wages provided by General Statutes § 31-72 because the collective bargaining agreement provided for resolution of disputes arising out of applicable employment law.


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Union Carbide Corporation v. Aetna Casualty and Surety Company et al.
    (13680)
    (13681)
    (13682)
    Peteks, C. J., Callahan, Glass, Covello and Hull, Js.
    Argued June 9
    decision released July 25, 1989

      James F. Stapleton, with whom were Stefan R. Underhill, S. KimBrunstad and, on the brief, Thomas J. Groark, Jr., Scott P. Moser, Kenneth W. Ritt, John R. Fitzgerald, Constance L. Epstein, Jack G. Steigel-fest and Paul A. Scholder, for the appellants (named defendant et al.).

      Sheldon Karasik, pro hac vice, Alan C. Nessman, pro hac vice, and Craig R. Brown, pro hac vice, with whom were Bruno deBiasi and, on the brief, Peter I. Sheft, Robin Stone Einbinder, Howard K. Fishman, R. Cornelius Danaher, Jr., Ralph G. Eddy, Timothy C. Russell, Peter D. Clark and Kimball Ann Lane, for the appellees (defendant AIU Insurance Company et al.).
   Peters, C. J.

The dispositive issue in this appeal is whether the trial court abused its discretion in granting a motion to dismiss on the ground of forum non conveniens. The plaintiff, Union Carbide Corporation, brought an action seeking a declaratory judgment to determine its insurance coverage for reimbursement of damages and costs associated with its toxic waste disposal activities at various sites throughout the country and in the Commonwealth of Puerto Rico. The defendants are 115 insurance companies that, since 1944, have insured the plaintiff under comprehensive general liability insurance policies, umbrella policies, and excess insurance policies. In response to the plaintiffs action, eighty-six defendants filed counterclaims seeking a declaration that they were not obligated to provide the insurance coverage sought by the plaintiff. After the closing of the pleadings, thirteen defendants filed a motion, to which the plaintiff and fifty-five other defendants objected, for dismissal of the plaintiffs complaint on the ground that Connecticut was not a proper forum for this action. The trial court, after a hearing, granted the motion and dismissed the action in its entirety. Although four appeals were initially filed from this judgment, the plaintiff withdrew its own appeal. The three remaining appeals, filed separately by the named defendant and two groups of insurance companies, were consolidated, expedited and transferred to this court pursuant to Practice Book § 4023. We find no error.

The relevant facts are undisputed. The plaintiffs complaint sought reimbursement for outstanding claims for environmental property damages and cleanup costs relating to its hazardous waste disposal activities since 1944 at thirteen sites, all outside of Connecticut. The plaintiff, a New York corporation, moved its corporate headquarters from New York to Connecticut in 1980. The defendant insurance corporations are headquartered in various locations in this country and abroad. Only four of the defendants have their headquarters in Connecticut, but that number includes the named defendant, which is the issuer of primary comprehensive general liability policies that cover all thirteen sites. Most of the 2116 insurance policies under which the plaintiff seeks coverage were not specifically issued to cover particular sites.

Despite the fact that the long arm statute, General Statutes § 52-59b, conferred jurisdiction on the trial court over all the defendants, the court granted the motion to dismiss filed by thirteen defendants. Concededly, the court had the authority to entertain and adjudicate this motion to dismiss. “The common law principle of forum non conveniens provides that a court ‘may resist imposition upon its jurisdiction’ even when it has jurisdiction. (Emphasis added.) Gulf Oil Corporation v. Gilbert, [330 U.S. 501, 507, 67 S. Ct. 839, 91 L. Ed. 1055 (1947)].” Brown v. Brown, 195 Conn. 98, 108, 486 A.2d 1116 (1985).

The trial court’s thoughtful and thorough seventy-nine page memorandum of decision documents the reasons for its action. Relying upon the methodology suggested by Gulf Oil Corporation v. Gilbert, supra, 508-509, the court first considered the availability of an alternate forum for adjudication of this law suit, and concluded that the courts of the seven states and Puerto Rico, where the thirteen toxic waste sites are located, would have jurisdiction over this litigation.

The trial court then went on to examine those private and public interest factors that Gulf Oil Corporation v.' Gilbert, supra, directs a court to balance. It emphasized the significance of the following five factors, which, inter alia, make Connecticut an inconvenient forum: (a) resolution of the coverage issues under the various insurance policies would in many cases entail thirteen site-specific factual inquiries into activities unrelated to Connecticut; (b) questions of law relating to resolution of the coverage issues would be governed, under applicable principles of conflict of laws, by the substantive law of states other than Connecticut; (c) many unwilling witnesses connected with operations at or near the thirteen toxic waste sites would not easily be compelled to attend a trial in Connecticut; (d) a single trial adjudicating all of the issues would take much longer, and be much more complicated, than a series of trials in the states where the toxic waste sites are located; and (e) court congestion in Connecticut would delay resolution of this litigation. The court concluded that these considerations outweighed both of the principal competing interests that it identified: the private interest of willing witnesses who wanted to avoid the costs of travel and repetitive testimony; and the special interest of the plaintiff in its selection of an appropriate forum.

Finally, the court noted that well established limitations on recourse to declaratory judgments lent further support to dismissal of this case. The court referred to numerous cases invoking the rule of Practice Book § 390 (c) that “[t]he court will not render declaratory judgments . . . where the court shall be of the opinion that the parties should be left to seek redress by some other form of procedure.” See, e.g., Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 360, 377 A.2d 1099 (1977); Stevens’ Appeal, 157 Conn. 576, 579, 255 A.2d 632 (1969).

In their appeal, the appellants, those defendants that contest dismissal of the plaintiffs cause of action, ask us to review two claims of error. They maintain that the trial court’s judgment: (1) fails to implement limitations imposed by the Connecticut constitution upon the doctrine of forum non conveniens; and (2) manifests an abuse of discretion under the common law doctrine of forum non conveniens. Only the second of these two claims is properly before us, however, since no constitutional issue was “distinctly raised” in the trial court, as Practice Book § -4185 requires.

I

Before addressing the merits of the appellants’ claim of abuse of discretion, we must consider whether, as the appellees maintain, supervening events have deprived this court of jurisdiction to hear this appeal. The appellees rely on two facts: the parties’ negotiation of the “Carbide Agreement,” and the plaintiff’s subsequent withdrawal of its appeal in this case. The “Carbide Agreement,” voluntarily entered into by all of the parties on March 27, 1989, provides that, with respect to all the relevant insurance issues in this case, litigation will proceed in eight site-specific lawsuits filed, on or about February 15,1989, in the eight jurisdictions in which the thirteen toxic waste sites are located. The plaintiff withdrew its appeal two days after the negotiation of the “Carbide Agreement.” As a result of these developments, according to the appellees, the interests of the parties remaining in this appeal are not adverse, and none of the appellants, even those seven appellants that filed counterclaims at trial, can demonstrate sufficient “aggrievement” to justify this appeal. We are unpersuaded.

The “Carbide Agreement,” in our view, does not dissipate the controversy between the parties about where this litigation should proceed. By its terms, the agreement contemplates a return to this state if the appellants succeed in overturning the judgment of the trial court. The fact that the agreement provides special, limited exceptions from this general principle only underscores the continued significance of the forum non conveniens question to the parties.

The plaintiff’s decision to withdraw its appeal similarly does not eliminate the interest of those appellants who were counterclaimants below in having this court determine the validity of their preference for having this litigation continue in Connecticut. “Under our rules of practice, a counterclaim, if proper, is an independent action. See Practice Book §§ 116,168,169; Hanson Development Co. v. East Great Plains Shopping Center, Inc., 195 Conn. 60, 63, 485 A.2d 1296 (1985); see also Schurman v. Schurman, 188 Conn. 268, 270, 449 A.2d 169 (1982).” Home Oil Co. v. Todd, 195 Conn. 333, 341, 487 A.2d 1095 (1985). The counterclaimants are aggrieved by the trial court’s allegedly improper dismissal of their own independent actions. See Malerba v. Cessna Aircraft Co., 210 Conn. 189, 192-93, 554 A.2d 287 (1989). Although the plaintiffs withdrawal has obvious significance for the substantive merits of the appellants’ claim of abuse of discretion, it does not deprive the appellants of standing to pursue this claim here.

II

We turn then to a review of the merits of the appellants’ claim that the trial court abused its discretion in determining that Connecticut was an inconvenient forum for the present litigation. The appellants maintain that the trial court erred in: (1) failing to defer to the preference of the counterclaimants for having the litigation proceed in Connecticut; (2) designating not one but eight alternative forums as a viable alternative to the Connecticut forum; (3) speculating about the convenience of trials in the jurisdictions where the toxic waste sites are located; (4) concerning itself with the complexities inherent in the size of this litigation; and (5) considering the implications of Connecticut’s crowded dockets for trial of this litgation in this state. We disagree that these claims of error, either singly or in toto, demonstrate a clear abuse of discretion.

As a common law matter, the doctrine of forum non conveniens vests discretion in the trial court to decide “where trial will best serve the convenience of the parties and the ends of justice.” Koster v. (American) Lumbermens Mutual Casualty Co., 330 U.S. 518, 527, 67 S. Ct. 828, 91 L. Ed. 1067 (1947); Brown v. Brown, supra, 108-109 and n.17. As the trial court recognized, the guidelines stated in Gulf Oil Corporation v. Gilbert, supra, and restated in Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257-62, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981), provide a useful frame of reference for the resolution of this question. It bears emphasis, however, that these guidelines begin with the proposition that the trial court’s exercise of its discretion may be reversed only upon a showing of clear abuse. “[Wjhere the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.” Id., 257. It bears equal emphasis that federally crafted guidelines do not impose binding directives upon our Connecticut common law, but rather should be viewed as illuminating the variety of competing private and public considerations that a trial court must weigh in the balance as it determines whether dismissal for forum non conveniens is warranted.

The appellants’ first claim is that the trial court assigned insufficient weight to the counterclaimants’ interest in having the trial go forward in Connecticut. Although the trial court expressly considered the importance of the plaintiffs preference for a Connecticut forum, it did not separately address the similar preferences of the counterclaimants. The appellants have nowhere indicated in what manner, if any, the issues raised by the counterclaims have separate implications for forum non conveniens purposes. Indeed, the appellants’ brief itself characterizes the counterclaims as mirroring the plaintiff’s complaint. In these circumstances, the question now before us devolves into whether the trial court abused its discretion in giving insufficient weight to a preference that the plaintiff has now abjured. In light of the fact that none of the toxic waste sites is located in Connecticut, and that the plaintiff and some of the counterclaimants are content to have the litigation proceed elsewhere, we conclude that the appellants have shown no abuse of discretion on this score.

The appellants’ second claim is that the trial court could not reasonably have determined that eight lawsuits outside of Connecticut would constitute a reasonable alternative to one lawsuit conducted in this state. They have, however, cited no authority for the proposition that only a unitary alternative site warrants dismissal on the ground that the local site is inconvenient. The availability of the eight alternatives is now confirmed by the “Carbide Agreement,” to which the appellants have concededly subscribed. This case therefore does not present the same risk of excessive fractionalizing .of claims that concerned the New Jersey court in Westinghouse Electric Corporation v. Liberty Mutual Ins. Co. 233 N.J. Super. 463, 559 A.2d 435 (1989). If a redistribution of this litigation to eight alternative site-specific forums is therefore feasible, as the record amply demonstrates, the trial court’s memorandum of decision includes careful consideration of the advantages that would flow from such a redistribution. The court considered such factors as the availability of site-specific witnesses, the significance of participation by local factfinders, the importance of documentary and deposition evidence, and the relative time required for site-specific as against comprehensive adjudication. The trial court’s multifaceted analysis of this issue demonstrates no abuse of discretion.

The appellants’ third claim is that the trial court indulged in unwarranted speculation in its assessment of the convenience of site-specific trials. At oral argument, however, the appellants, despite their insistence that there were commonalities about all the issues of insurance coverage, agreed that some site-specific questions would necessarily arise. They also agreed that principles of conflict of laws would preclude the applicability of Connecticut domestic law in the adjudication of any of these cases. Once these premises are established, the trial court’s inferential findings about the significance of local witnesses and the desirability of access to the local site, which were crucial to the court’s conclusion, do not strike us as impermissibly speculative. By necessity, a motion for dismissal on the ground of forum non conveniens must be heard on a record that is less specific than we would require for a trial on the merits. See Piper Aircraft Co.v. Reyno, supra, 258; Fitzgerald v. Texaco, Inc., 521 F.2d 448, 451 n.3 (2d Cir. 1975).

The appellants’ fourth and fifth claims concern the alleged impropriety of the trial court’s consideration, as public factors to be weighed in the balance, of the complexities inherent in the size of this litigation and the burdens that it would impose on Connecticut’s crowded dockets. While we agree with the appellants that these factors would not, by themselves, justify the conclusion that Connecticut is an inappropriate forum, we are not persuaded that they are entirely irrelevant; see Gulf Oil Corporation v. Gilbert, supra, 508-509; or that the trial court assigned them inordinate significance.

“Wisely, it has not been attempted to catalogue the circumstances which will justify or require either grant or denial of [the] remedy [of dismissal for forum non conveniens]. The doctrine leaves much to the discretion of the court to which [the] plaintiff resorts, and experience has not shown a judicial tendency to renounce one’s own jurisdiction so strong as to result in many abuses.” Id., 508. The appellants have not demonstrated such an abuse in this case.

There is no error.

In this opinion the other justices concurred.

       The plaintiff brought its action pursuant to General Statutes § 52-29 and Practice Book §§ 388 through 394.

       The toxic waste sites are located in seven states and the Commonwealth of Puerto Rico: three in North Carolina, two each in Ohio, Texas and Puerto Rico, and one in Indiana, New York, Colorado and West Virginia. With the exception of the three sites in North Carolina, one site in Ohio, and the only site in Indiana, the landfills are owned as well as operated by the plaintiff.

       The court also considered a number of other factors that are of lesser significance in the circumstances of this case. It found that: (a) most of the relevant documentary evidence is in the possession of third parties located near the toxic waste sites and would be difficult to produce in Connecticut; (b) the cost of transporting out-of-state witnesses to Connecticut would be greater than the expense of requiring some of the plaintiffs employees to testify in other states; (c) the ability of the factfinder to view the sites at issue would be handicapped if the case were tried in Connecticut; (d) dividing the litigation into eight separate actions would not prevent any of the parties from obtaining a fair trial; and (e) residents of the Danbury judicial district have little interest in the plaintiffs insurance reimbursement claims for liabilities incurred in other states, whereas citizens of the states where the sites are located have a much greater interest. The trial court also found, on the other hand, that: (f) the plaintiff would be unlikely to have difficulty enforcing any judgment that it obtained in Connecticut against the defendants; and (g) the plaintiff had not acted upon any improper motive in bringing the action in Connecticut.

       The appellants concede that they did not cite to the trial court the “open courts” provision of the Connecticut constitution, article first, § 10, on which they now rely. We disagree that this issue was indirectly raised at trial by arguments relating to public policy considerations affecting forum non conveniens, because such considerations were related directly to the common law doctrine of forum non conveniens that the trial court applied.
      This case, furthermore, does not warrant invocation either of the “exceptional circumstances” rule of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), or the “plain error” exception of Practice Book § 4185. We have repeatedly emphasized our disapproval of requests for appellate scrutiny of alleged errors of law raising newly discovered issues on which the trial court never had the opportunity to rule. This appeal does not fall within the narrow exception from this abiding principle that we have carved out for “egregious errors that undermine the fairness of a trial and cast doubt on the integrity of judicial proceedings.” State v. Hull, 210 Conn. 481, 485, 556 A.2d 154 (1989); Scott v. Barrett, 212 Conn. 217, 222, 561 A.2d 941 (1989); see also Roche v. Fairfield, 186 Conn. 490, 505, 442 A.2d 911 (1982).

       Paragraph 2 of the “Carbide Agreement” provides: “[Union Carbide Corporation] agrees not to oppose any attempt to expedite the appeal of the Connecticut Action. If an appeal of the Connecticut Action is successfully maintained, all discovery that shall have occurred in the State Court Actions prior to an appellate ruling reinstating the case in the trial court shall have the same force and effect as if taken in the Connecticut Action in accordance with the Connecticut Practice Book. Except as otherwise provided in this paragraph, if the Connecticut Action is reinstated in the trial court, the State Court Actions (except the New Jersey Action) shall be dismissed and litigation with respect to the sites involved in the State Court Actions shall proceed in the Connecticut Action. A State Court Action shall not be dismissed and litigation with respect to the sites involved in such a State Court Action shall not proceed in the Connecticut Action if (1) the final appellate ruling in Connecticut occurs less than 60 days prior to a firm trial date established in such a State Court Action; or (2) if a party to a State Court Action establishes to the satisfaction of the trial court in Connecticut that, based upon the procedural posture of such action (expressly not based on the substantive law (including conflicts of law rules) of such State Court jurisdiction), proceeding with said action in Connecticut would be unduly prejudicial. In addition, if a potentially dispositive motion as to any party has been fully briefed in a State Court Action, that Action shall not be dismissed and litigation with respect to the sites involved shall not proceed in Connecticut (1) until the motion is finally decided and (2) subject to the preceding sentence; any such litigation which does proceed in Connecticut shall do so consistent with the ruling on the motion in the State Court Action.”

        Westinghouse Electric Corporation v. Liberty Mutual Ins. Co., 233 N.J. Super. 463, 559 A.2d 435 (1989), concerned the litigation of toxic waste torts and environmental claims relating to eighty-one sites located in twenty-three states; nine of these sites were in New Jersey. The Appellate Division found an abuse of discretion in the trial court’s decision to invoke forum non conveniens to sever the claims relating to New Jersey sites from those relating to sites in other states. The plaintiff in that case was one of the parties pursuing the appeal.


author: Glass, J.

text:
    Associated Catalog Merchandisers, Inc. v. Pierre Chagnon et al.
    (13525)
    Peters, C. J., Healey, Shea, Glass and Hull, Js.
    Argued January 5
    decision released July 25, 1989

      F. Woodward Lewis, Jr., with whom, on the brief, was Robert J. Mead, for the appellants-appellees (defendants).

      Thomas H. Connell, for the appellee-appellant (plaintiff).
   Glass, J.

The background facts of the present case are fully set forth in in Associated Catalog Merchandisers, Inc. v. Chagnon, 210 Conn. 734, 557 A.2d 525 (1989). The present matter is before us pursuant to our order of remand for an articulation of the trial court’s disposition of the plaintiff’s claim on cross appeal for attorney’s fees. Id., 750-51. The trial court subsequently filed an articulation denying the plaintiff s claim for attorney’s fees. We now affirm the trial court’s denial of the plaintiff’s claim for attorney’s fees.

In its’ cross appeal, the plaintiff claimed that the trial court erred in failing to award it reasonable attorney’s fees. It argued that its right to attorney’s fees is expressly provided in the language of the installment note stating that “[i]n the event of default hereunder the undersigned agree to pay all costs of collection including reasonable attorney’s fees.” Because the trial court had failed to address the plaintiffs claim for attorney’s fees in its original memorandum of decision, we remanded the case for further articulation on this issue alone. Id. Thereafter, the trial court filed an articulation, stating that it had denied the plaintiff attorney’s fees. It found that despite the guaranty instrument’s express provision for recovery of attorney’s fees in event of the defendants’ default, the parties had not intended that the defendants were guaranteeing more than the sum of $35,000.

The trial court did not err in concluding that the plaintiff was not entitled to attorney’s fees. In Boxed Beef Distributors, Inc. v. Rexton, Inc., 7 Conn. App. 555, 556, 509 A.2d 1060 (1986), the plaintiff obtained a personal guaranty from the defendant on the defendant’s debt. The guaranty instrument provided that the guaranty would be for a maximum of $20,000, and also provided that the defendant would be liable for “ ‘any costs of collection thereof including but not limited to attorney fees.’ ” Id., 558-59. The Appellate Court held that the trial court erred in awarding the plaintiff costs of collection. Id., 560. “[T]he costs of suit incurred by the plaintiff in obtaining its judgment against the corporation and [the guarantor] cannot be added to [the guarantor’s] indebtedness if doing so would exceed the limit placed upon his guaranty. The terms of the guaranty included, as part of [the guarantor’s] obligation thereunder, the costs of collection. That same guaranty, however, specifically limited [the.guarantor’s] liability to $20,000. Thus, by the express terms of the guaranty, costs of collection are subject to the limitation in the guaranty since no distinction with respect to the maximum obligation is made between the principal debt and the costs of collection.” Id.

The “installment note” in the present case did not indicate whether the defendants would be liable for $35,000 exclusive or inclusive of costs of collection and attorney’s fees. The trial court, however, may have reasonably determined that the guaranty agreement in toto, as evidenced by the “installment note” and the oral communications of the parties, subjected the defendants’ liability for costs of collection and attorney’s fees to the $35,000 limitation. Boxed Beef Distributors, Inc. v. Rexton, Inc., supra. The trial court expressly found that the “defendants never intended to guarantee more than the sum of $35,000.00.” The question of the parties’ intent was a question of fact. The plaintiff’s attempt to distinguish Boxed Beef Distributors, Inc., from the present case on the ground that the language in the “installment note” did not specifically limit liability to $35,000 is an attempt to relitigate this question of fact. On the basis of the evidence relied on by the trial court in its memorandum of decision and subsequent articulation, we cannot conclude that the denial of the plaintiff’s claim for attorney’s fees was clearly erroneous.

There is no error.

In this opinion the other justices concurred.


author: Shea, J.

text:
    State of Connecticut v. Eugene Oehman
    (13195)
    Peters, C. J., Siiea, Callahan, Glass, and Hull, Js.

      Argued April 5
    decision released August 1, 1989

      James W. Bergenn, with whom, on the brief, was Linda L. Yoder, for the appellant (defendant).

      Susan C. Marks, assistant state’s attorney, for the appellee (state).
   Shea, J.

After a jury trial, the defendant was convicted of murder in violation of General Statutes § bSaSAa. In this appeal he claims that: (1) the trial court erred in refusing to allow him to elicit testimony, during cross-examination, of possible bias on the part of a witness for the state; and (2) the conduct of the state’s attorney during closing argument deprived him of his constitutional right to a fair trial. We find no reversible error.

From the evidence presented the jury could reasonably have found the following facts. On July 28,1986, at approximately 6:39 a.m., the body of the victim, John Lyons, was found lying across the front seat of his automobile, at the intersection of Milton and Grand Streets, in the city of West Haven. An autopsy revealed that the victim’s death was caused by five gunshot wounds, resulting in injury to the heart, lungs and intestines. Inspection of the victim’s automobile, by members of the West Haven police department, revealed that: (1) the windshield wipers were in operation and the dashboard lights were on; (2) there were three expended .380 caliber shell casings inside the vehicle; (3) the defendant’s fingerprints were located on the outer portion of the vehicle’s trunk; and (4) there was a piece of paper above the passenger side sun-visor, on which was written “white V.W. Rabbit, 293,” identifying a vehicle registered to the defendant.

Two young girls, delivering newspapers, noticed the victim’s automobile and saw a dark haired man, wearing blue clothing, standing outside the door on the driver’s side. One of the girls saw the man in the blue clothing put his hands on the “top” of the victim’s car. The girls heard noises like five firecrackers, heard a person in the victim’s automobile scream, and then saw the man in the blue clothing get into a blue car and rapidly drive away. The defendant owned both a blue Datsun and a white Volkswagen.

In January, 1986, the defendant began an extramarital affair with the wife of the victim, seeing her once or twice each week until June, 1986. The defendant informed his own wife of this affair and told her that he wanted to obtain a divorce. In early June, in response to an inquiry by the victim concerning the duration of the affair between the defendant and his wife, the defendant visited the victim at his home. At this meeting the victim told the defendant to stay away from his house and to leave his children alone. In June or July, 1986, the defendant told a co-worker that he was engaged in an affair with the victim’s wife and that he was in the process of obtaining a divorce. The defendant asked this co-worker how he should go about purchasing a gun.

On July 24, four days before the victim’s death, Jason Chiello, as the result of an advertisement he had placed in the Bargain News, sold a .380 caliber handgun to an individual identifying himself as “George Best.” Chiello and two other persons, present at the time of the sale, identified the defendant as the purchaser of this handgun. Chiello provided the police with empty shell casings that had been expended, during an earlier test-firing session, from the weapon sold to the defendant. Ballistics tests revealed that these shell casings and those found in the victim’s automobile had been ejected from the same weapon.

Also on July 24, Stephen Prindle, a firearms dealer, sold a customer one box of .380 caliber ammunition. In accordance with recordation requirements, he asked the purchaser for his driver’s license and, thereafter, entered the identification information in an ammunition sales logbook. The next morning, Prindle discovered that his store had been broken into and that the ammunition sales logbook had been taken. A ladder, found outside the window that had been used to gain entry into the shop, was identified as being similar to one that was discovered missing from the defendant’s place of employment. From an array of photographs, Prindle identified the defendant as the purchaser of the ammunition, although he was “not one hundred percent sure” of his identification. Prindle remembered, however, that the purchaser’s first name was “Eugene,” and that the letters “H,” “O,” and “E” were at the beginning of the last name.

On July 29, the day after the victim’s death, the defendant was interviewed at the West Haven police station. The defendant told police officers that: he had never been to the victim’s house; he did not know if the victim’s wife had been engaged in an extramarital affair; he had never had any contact with the victim; and he did not know the victim’s wife other than as a result of their being co-workers. The defendant testified on his own behalf at trial and admitted, during cross-examination, that he had lied when making those statements to the police.

I

The defendant first claims that by preventing him from eliciting, during cross-examination, evidence of possible bias on the part of a witness for the state, the trial court impermissibly restricted his constitutionally guaranteed right of confrontation.

During cross-examination by the defendant, Prindle testified that, in addition to himself, one person worked at his firearms store as a paid employee. Defense counsel then asked whether Prindle had “any other persons who might help [him] out who [weren’t] paid.” The state objected to this question on the basis of relevance, whereupon counsel for the defendant stated that he was attempting to show bias on the part of Prindle. During an offer of proof, conducted outside the presence of the jury, Prindle testified that a member of the West Haven police department occasionally helped him in his store. Prindle also stated that he had conducted business with “perhaps two or three” members of the West Haven police department on a regular basis, and with “quite a few” members of the same department “[o]ver a period of time.” After the defendant had elicited the names of several such customers, the ■ state again objected to the introduction of this line of testimony, claiming that it was irrelevant and that no connection had been shown between the officers named and the investigation into the victim’s death. Defense counsel argued that “part of [Prindle’s bias] might be the fact that he does business with the West Haven Police Department, be it that they be actually involved in this investigation here or not.” The trial court sustained the state’s objection and noted the defendant’s exception.

“Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted.” State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982). “[A] major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him.” Pointer v. Texas, 380 U.S. 400, 406-407, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965). It has been well “recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. George, 194 Conn. 361, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985). “To comport with the constitutional standards embodied in the confrontation clause the defendant in exercising his right of cross-examination must be allowed to ‘expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.’ ” State v. Wilson, supra, quoting Davis v. Alaska, supra, 318. “Although the scope of cross-examination rests generally within the discretion of the trial court, the preclusion of all inquiry upon a particular subject matter tending to show bias is erroneous.” State v. James, 211 Conn. 555, 573, 560 A.2d 426 (1989).

Despite the trial court’s preclusion of all inquiry on the subject, the state argues that, since there was no connection shown between the officers named by Prindle and the investigation of this case, the evidence offered was irrelevant to the existence of possible bias on the part of Prindle. We do not agree that such a connection is a prerequisite to the introduction of evidence from which jurors might infer that a witness for the state is either biased in favor of police officers in general, or, in particular, biased in favor of members of the police department whose investigation resulted in the defendant being charged with a criminal offense. “Partiality, or any acts, relationships or motives reasonably likely to produce it, may be proved to impeach credibility.” C. McCormick, Evidence (3d Ed.) § 40, p. 85; see C. Tait & J. LaPlante, Connecticut Evidence § 7.20.1; cf. State v. Hernandez, 204 Conn. 377, 382, 528 A.2d 794 (1987); State v. Fritz, 204 Conn. 156, 162, 527 A.2d 1157 (1987) (when important testimony from police officers is anticipated, such that a juror might reasonably be more, or less, inclined to credit their testimony, questions concerning whether a juror would have such an inclination are proper during voir dire).

We find error in the trial court’s ruling barring cross-examination of Prindle concerning his business dealings with various members of the West Haven police department. The defendant’s attempt to show that Prindle was biased in favor of the police because of these dealings was precluded by the court’s ruling. While, in the opinion of the trial court, the evidence sought to be presented may have been not particularly persuasive, its weight was a matter properly to be resolved by the jury and was not a basis for its exclusion.

We conclude, nevertheless, that the trial court’s erroneous ruling was harmless beyond a reasonable doubt. “The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.” Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986); State v. Milner, 206 Conn. 512, 529, 539 A.2d 80 (1988). Our resolution of this question involves consideration of “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s cas e.” Delaware v. Van Arsdall, supra. Applying these factors to the instant case, we conclude that the testimony of Prindle, although damaging to the defendant, was not' a very important component of the state’s proof of the defendant’s guilt beyond a reasonable doubt.

Prindle’s testimony, concerning the defendant’s purchase of ammunition, was not especially significant to the state’s case. Other evidence was presented from which the jurors could reasonably have concluded that the defendant had purchased the murder weapon four days prior to the victim’s death. Three witnesses identified the defendant as “George Best,” the purchaser of the .380 caliber handgun, and the ballistics tests linked that handgun to the shell casings found in the victim’s automobile. With this evidence before the Jurors, Prindle’s testimony concerning the defendant’s purchase of .380 caliber ammunition was not of major significance. Prindle’s testimony, concerning the break-in at his store and the theft of his ammunition sales logbook was far less important than the ballistics evidence linking the shell casings found in the victim’s car to the weapon purchased by the defendant. Moreover, this testimony concerning the break-in and theft was partially cumulative of independent evidence that the ladder used to facilitate the break-in had been taken from the defendant’s place of employment.

Further, the trial court’s ruling did not otherwise prevent the defendant from conducting an extensive cross-examination of Prindle. Even if the jury had been made aware of Prindle’s relationship with some members of the West Haven police department as a basis for inferring bias on his part, the verdict undoubtedly would have been the same. We conclude that the trial court’s erroneous ruling was harmless beyond a reasonable doubt.

II

The defendant’s second claim of error, denial of a fair trial due to prosecutorial misconduct during closing arguments, we also find unpersuasive. The defendant bases this claim upon statements made by the prosecutor characterizing the defendant as a “liar,” “coward,” “spoiled killer with a gun,” and as an individual who “has no principles.” The defendant also asserts that the prosecutor improperly vouched for the credibility of several of the state’s witnesses, and further, expressed to the jurors his personal feelings about the case. The defendant, having failed to raise any objection at trial, concedes that he did not properly preserve this claim for review, but argues, nonetheless, that he is entitled to relief under the doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), or the plain error doctrine. See Practice Book § 4185.

Rule 3.4 (e) of the Rules of Professional Conduct provides that a lawyer shall not “[i]n trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness ... or the guilt or innocence of an accused.” Although such invective is wholly unprofessional and has no place in a Connecticut courtroom, we conclude that the comments by the prosecutor characterizing the defendant as a liar, coward, and a person without principles were supported by the evidence presented in this case. The jurors heard the defendant testify concerning numerous lies he had told to various persons both before and after the death of the victim. In this situation, it was certainly permissible for the jurors to infer, and for the prosecutor to argue, that the defendant’s prior lies were relevant to the credibility of his testimony at trial. Likewise, we conclude that the prosecutor’s characterization of the defendant as a coward was not impermissible in light of evidence that the victim was unarmed and seated in his automobile at the time he was shot. Finally, with ample evidence having been presented concerning the defendant’s open and adulterous relationship with the victim’s wife, we also conclude that the prosecutor was not out of bounds in arguing that the defendant was lacking in principles.

Nevertheless, we conclude that the prosecutor’s comment that the defendant was a “spoiled killer with a gun” went beyond proper argument concerning the evidence presented at trial and was, instead, a pejorative statement, implying the prosecutor’s personal opinion of the guilt of the defendant, in violation of Rule 3.4 (e). “ ‘No man on trial for murder can be officially characterized as a murderer or as “a cold-blooded killer,” until he is adjudged guilty of murder or pleads guilty to that charge.’ ” State v. Couture, 194 Conn. 530, 562, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). “But that is not the end of the inquiry. Because the right implicated is the defendant’s due process right to a fair trial, we proceed next to an examination of the remarks to determine their likely impact.” Id. Our review of the record reveals that the prosecutor’s comment was not part of a pattern of strident and repeated misconduct throughout the trial; State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987); and did not, in and of itself, deprive the defendant of a fair trial. See State v. James, supra, 590.

We also conclude that the prosecutor made several inappropriate remarks concerning his belief in the credibility of various witnesses. For example, the prosecutor informed the jurors that witnesses for the state were “honest,” “very honest,” “candid” or “telling the truth.” In addition, in response to defense counsel’s argument concerning the specific time at which the defendant was seen at his place of employment on the morning of the victim’s death, the prosecutor stated to the jurors, “I submit to you [the state’s witness is] the one that tells you the truth about sighting the defendant,” and further, that he “absolutely believefd]” the witness.

“The prosecutor may not express his own opinion, either directly or indirectly, as to the credibility of witnesses.” State v. Williams, supra, 541; State v. Boone, 15 Conn. App. 34, 53, 544 A.2d 217, cert. denied, 209 Conn. 811, 550 A.2d 1084 (1988); State v. Floyd, 10 Conn. App. 361, 365, 523 A.2d 1323 (1987). While the prosecutor is permitted to .comment upon the evidence presented at trial and to argue the inferences that the jurors might draw therefrom, he is not permitted to vouch personally for the truth or veracity of the state’s witnesses. “The personal evaluations and opinions of trial counsel are at best boring irrelevancies and a distasteful cliche-type argument. At worst, they may be a vague form of unsworn and irrelevant testimony.” Harris v. United States, 402 F.2d 656, 659 (D.C. Cir. 1968). “The fairness of the trial and not the culpability of the prosecutor is [however,] the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). Thus, “improper summation results in a denial of due process when the improper statements cause substantial prejudice to the defendant.” United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981).

Our review of the prosecutor’s summation reveals that his comments that particular witnesses were “telling the truth” or being “honest,” “very honest,” or “candid,” were made immediately prior to a recapitulation of the witnesses’ testimony. Although objectionable and improper, these comments did not constitute serious misconduct on the part of the prosecutor. Furthermore, these comments are not a reflection of, nor does the defendant claim, a pattern of prosecutorial misconduct throughout the course of the trial. We conclude, therefore, that these comments “could not reasonably have had any significant effect on the verdict or have risen to the level of a violation of the defendant’s constitutional right to a fair trial.” State v. James, supra.

We are much more troubled, however, by the prosecutor’s remarks, during his rebuttal argument, concerning his absolute belief in the testimony of one particular witness, as well as his submission to the jury that the same witness was telling the truth. Our review of the record reveals that on the morning of the victim’s death, the witness in question saw the defendant at his place of employment at a time that was consistent with the defendant’s commission of the murder but still allowed sufficient time for him to complete the drive to his work place. This testimony was contrary to the defendant’s testimony as well as that of one of his witnesses, that he had spent the night at his work place and was seen there ten minutes earlier than the time given by the witness for the state. In these circumstances we find the prosecutor’s comments concerning the truthfulness of the state’s witness to be inexcusable as well as absolutely superfluous in light of the other significant evidence linking the defendant to the victim’s death.

Our review of the record also reveals, however, that the prosecutor’s comments were occasioned, at least in part, by the actions of defense counsel, who in his own summation directly impugned the truthfulness of one of the state’s witnesses, and most significantly, told the jurors that the defendant “never lied to you. He got up on that witness stand and he told the truth.” While the actions of defense counsel certainly do not excuse the behavior of the prosecutor, they are to be considered in our evaluation of the prejudice, if any, suffered by the defendant as a result of the comments made by the prosecutor. State v. Williams, supra, 540.

We also note that the jurors were instructed that “[ajnything that either counsel have said about the facts or evidence should be considered by you only to the extent to which their recollection agrees with yours. It is only your own recollections of the facts and evidence which should have weight in your deliberations.” Taking into consideration the overwhelming strength of the state’s case, we are not persuaded that the comments made by the prosecutor resulted in prejudice to the defendant sufficient to warrant a reversal of his conviction. This conclusion is buttressed by the defendant’s failure to make any claim of prosecutorial misconduct at trial, or to object to those portions of the prosecutor’s summation complained of on this appeal. Accordingly, no further review of this claim is warranted. State v. Evans, supra.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 53a-54a provides in part: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

       One girl described this clothing as a blue suit, while the other said that the person was wearing blue pants and a blue shirt. The defendant was seen at approximately 7:10 a.m., wearing blue jeans and a blue striped shirt, watching the news on television.

       The sixth amendment to the United States constitution, as applied to the states in Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965), provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.”

       In addition to the defendant’s admitted lies to police officers concerning his relationship with the victim and the victim’s wife, the defendant also admitted that he had lived at his place of employment, had concealed this fact from his co-workers and superiors, had lied to his superiors about the arrangement and had lied in order to obtain a refund of a security deposit placed on an apartment that he was planning to share with the victim’s wife and children.

       We also decline to engage in further review of this claim under the doctrine of plain error, as we conclude that the prosecutor’s comments did not constitute one of those “truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).