author: CALLAHAN, C. J.

text:
    ANGELSEA PRODUCTIONS, INC. v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES ET AL.
    (SC 16008)
    Callahan, C. J., and Norcott, Katz, Palmer and Peters, Js.

      Argued January 22
    officially released April 13, 1999

      Albert Zakarian, with whom was Sarah C. Baskin, for the appellant (plaintiff).

      Charles Erich, with whom, on the brief, was Philip A. Murphy, Jr., for the appellee (named defendant).
   Opinion

CALLAHAN, C. J.

The principal issue in this appeal is whether Public Acts 1996, No. 96-241 (P.A. 96-241), provides the named defendant, the commission on human rights and opportunities (commission), with jurisdiction to proceed with a public hearing on a complaint brought to the commission by the defendant, Susan Hyde, against the plaintiff, Angelsea Productions, Inc. We conclude that P.A. 96-241 does provide the commission with jurisdiction to proceed with a hearing on Hyde’s complaint.

The following facts and procedural history are relevant to this appeal. Hyde was employed by the plaintiff from September, 1990, until her resignation on January 29, 1991. In April, 1991, Hyde filed a complaint with the commission pursuant to General Statutes § 46a-82 alleging various discriminatory acts by the plaintiff.

On March 3, 1993, the plaintiff moved to dismiss Hyde’s complaint on the ground that the commission had not concluded its investigation within nine months of the filing of the complaint as required by General Statutes (Rev. to 1993) § 46a-83 (b). On March 17,1993, without ruling on the plaintiffs motion to dismiss Hyde’s complaint, the commission issued a reasonable cause finding in favor of Hyde. Thereafter, on June 15, 1993, the commission denied the plaintiffs motion to dismiss its investigation of Hyde’s complaint.

On October 4, 1993, more than six months after its reasonable cause finding, the commission, pursuant to General Statutes (Rev. to 1993) § 46a-84 (b), appointed a hearing officer to adjudicate Hyde’s claim against the plaintiff. On November 29,1993, citing the commission’s failure to comply not only with the nine month deadline set forth in § 46a-83 (b), but also with the requirement set forth in § 46a-84 (b) that the commission hold a hearing within ninety days of issuing a reasonable cause finding, the plaintiff filed a motion seeking to have the hearing officer dismiss Hyde’s complaint for lack of jurisdiction.

On November 29, 1993, pursuant to General Statutes § 4-176 (a), the plaintiff also instituted a proceeding before the commission seeking to have the commission issue a declaratory ruling as to whether the time limitations set forth in §§ 46a-83 (b) and 46a-84 (b) were mandatory and required the dismissal of: (1) complaints not investigated within nine months of the date of filing; and (2) complaints not brought to a hearing within ninety days of the date of issuance of a finding of reasonable cause.

On January 4, 1994, the hearing officer denied the plaintiffs motion to dismiss Hyde’s complaint for lack of jurisdiction. On March 22, 1994, the commission issued a declaratory ruling in accordance with General Statutes § 4-176 (e). In that ruling, the commission concluded that: (1) the time limitations of §§ 46a-83 (b) and 46a-84 (b) were directory and not mandatory; (2) the commission’s failure to comply with the deadlines set forth in § § 46a-83 (b) and 46a-84 (b) had not divested the commission of jurisdiction over Hyde’s complaint; and (3) the public hearing on her complaint should continue until a final decision had been issued by the hearing officer.

Thereafter, the plaintiff brought an administrative appeal from the commission’s declaratory ruling to the Superior Court pursuant to General Statutes §§ 4-176 (h) and 4-183. In its administrative appeal, the plaintiff sought: (1) a declaratory ruling that failure to comply with the deadlines set forth in §§ 46a-83 (b) and 46a-84 (b) deprived the commission of jurisdiction to proceed with the public hearing process; and (2) an injunction prohibiting the commission from proceeding with the public hearing on Hyde’s complaint.

At the request of the parties and to expedite resolution of the plaintiff’s appeal, the trial court reserved the following four questions for consideration by the Appellate Court pursuant to General Statutes § 52-235 and Practice Book § 4147, now § 73-1: (1) “Is the time limit for investigating a complaint set forth in [§ 46a-83 (b)] mandatory?”; (2) “If the [commission] fails to make a reasonable cause determination within nine months from the date of filing a complaint, as set forth in [§ 46a-83 (b)], must the [commission] dismiss the complaint for lack of jurisdiction?”; (3) “Is the time limit for holding a public hearing set forth in [§ 46a-84 (b)] mandatory?”; and (4) “If the [commission] fails to hold a public hearing within [ninety] days after a finding of reasonable cause, as set forth in [§ 46a-84 (b)], must the [commission] dismiss the complaint for lack of jurisdiction?” We transferred the reservation from the Appellate Court to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 4023, now § 65-1.

In Angelsea Productions, Inc. v. Commission on Human Rights & Opportunities, 236 Conn. 681, 674 A.2d 1300 (1996) (Angelsea I), we answered all four of the reserved questions in the affirmative. Specifically, we concluded that the time deadlines set forth in § § 46a-83 (b) and 46a-84 (b) were mandatory, not discretionary, and that upon failure to comply with those time limits, the commission was required to dismiss the underlying complaint for lack of jurisdiction. Id., 700. Our decision in Angelsea I was released on April 23, 1996, and on May 3, 1996, the defendants filed a timely motion for reargument.

While the defendants’ motion for reargument in Angelsea I was pending before this court, the legislature enacted P.A. 96-241. Public Act 96-241, § 1 (a), which is codified at General Statutes § 46a-82b (a), provides, with respect to complaints pending before the commission, that “ [notwithstanding any provision of the general statutes to the contrary, the Commission on Human Rights and Opportunities shall have jurisdiction over any complaint filed pursuant to section 46a-82 of the general statutes on or before January 1, 1996, which has not been finally adjudicated or resolved by action of the commission, that the commission would have had jurisdiction over but for the failure of the Commission on Human Rights and Opportunities to comply with the time requirements of chapter 814c of the general statutes.”

Regarding complaints in which an appeal had been taken from a decision rendered by the commission, P. A. 96-241, § 3 (a), which is codified at General Statutes § 46a-82d (a), similarly provides in relevant part: “Any action filed pursuant to section . . . 4-183 of the general statutes concerning a complaint filed pursuant to section 46a-82 of the general statutes on or before January 1, 1996, in which a final judgment has not been entered prior [to June 6, 1996], otherwise valid except for the failure of the Commission on Human Rights and Opportunities to comply with the time requirements of chapter 814c of the general statutes is validated.”

With respect to complaints that had been dismissed for lack of jurisdiction for failure to comply with the time deadlines, P.A. 96-241, § 3 (b), which is codified at § 46a-82d (b), provides: “If any action filed pursuant to section 46a-94a, 46a-95 or 4-183 of the general statutes concerning a complaint filed pursuant to section 46a-82 of the general statutes on or before January 1, 1996, has failed to be tried on its merits because the action has been dismissed by the Superior Court for want of jurisdiction due to the failure of the Commission on Human Rights and Opportunities to comply with the time requirements of chapter 814c of the general statutes, a party to the action may, on or before October 1, 1996, petition the court to reopen such action. The court shall set aside the judgment and reinstate the case on the docket.”

Public Act 96-241 took effect on June 6, 1996. On that same date, we denied the defendants’ motion for reargument in Angelsea I. On June 21,1996, contending that our decision in Angelsea I required the trial court to sustain the plaintiffs administrative appeal from the commission’s declaratory ruling, the plaintiff filed a motion requesting that the trial court render judgment in its favor and against the defendants. On July 8, 1996, before the trial court had ruled on the plaintiffs motion for judgment in its administrative appeal, the defendants filed a motion to dismiss the appeal, arguing that P.A. 96-241 had rendered the appeal moot.

On February 11, 1998, concluding that P.A. 96-241 gave the commission jurisdiction to proceed with a hearing on Hyde’s complaint, the trial court: (1) denied the plaintiffs motion for judgment; and (2) granted the defendants’ motion to dismiss the plaintiffs administrative appeal from the commission’s declaratory ruling. The plaintiff appealed from the trial court’s judgment of dismissal to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

On appeal, the plaintiff argues that the trial court’s granting of judgment in favor of the defendants was improper because P.A. 96-241 did not give the commission jurisdiction to proceed with a public hearing on Hyde’s complaint, and, consequently, the commission’s failure to comply with the deadlines set forth in §§ 46a-83 (b) and 46a-84 (b) continued to deprive it of such jurisdiction. The plaintiff alternatively claims if P.A. 96-241 did provide the commission with jurisdiction to proceed with a public hearing on Hyde’s complaint, P.A. 96-241 is unconstitutional because it abrogates the plaintiffs vested rights in the time limitations set forth in §§ 46a-83 (b) and 46a-84 (b), and it violates the doctrine of separation of powers. We disagree with all three of the plaintiffs claims.

I

The plaintiff first contends that the trial court improperly dismissed its administrative appeal from the commission’s declaratory ruling. In the plaintiffs view, the fact that the trial court’s reserved questions were answered adversely to the defendants by this court in Angelsea I on April 23, 1996, compels the conclusion that P.A. 96-241 does not bestow jurisdiction on the commission to proceed with a public hearing on Hyde’s complaint because, after that date, her complaint was no longer pending. Although we agree that in the case of a question reserved to the Supreme Court, the trial court making the reservation must conform to our advice; General Statutes § 52-235 (b); we nevertheless conclude that Hyde’s complaint still was pending after April 23, 1996.

As previously noted, P.A. 96-241, § 1 (a), which is codified at § 46a-82b (a), provides: “Notwithstanding any provision of the general statutes to the contrary, the Commission on Human Rights and Opportunities shall have jurisdiction over any complaint filed pursuant to section 46a-82 of the general statutes on or before January 1,1996, which has not beenfinally adjudicated or resolved by action of the commission, that the commission would have had jurisdiction over but for the failure of the Commission on Human Rights and Opportunities to comply with the time requirements of chapter 814c of the general statutes.” (Emphasis added.) Thus, the effect of P.A. 96-241, § 1 (a), was to provide the commission with jurisdiction over complaints filed prior to January 1, 1996, and still pending before the commission on June 6, 1996, the date on which P.A. 96-241 became effective.

For the reasons that follow, we conclude that Hyde’s complaint had not been resolved by the commission and was still pending on June 6, 1996. First, P.A. 96-241, § 5, as it amended § 46a-84 (b), requires that a hearing on a complaint filed with the commission be conducted “in accordance with the provisions of § 4-180.” Section 4-180 (c) provides in relevant part: “A final decision in a contested case shall be in writing or orally stated on the record and, if adverse to a party, shall include the agency’s findings of fact and conclusions of law necessary to its decision. . . . The final decision shall be effective when personally delivered or mailed or on a later date specified by the agency.” (Emphasis added.) It is undisputed that the hearing officer appointed to adjudicate Hyde’s complaint did not render a decision dismissing her complaint on or before June 6, 1996, the effective date of P.A. 96-241.

This court contemplated, moreover, more than a mere dismissal following our decision in Angelsea I that the commission lacked jurisdiction to proceed with a hearing. We concluded that our determination that the commission’s failure to comply with the deadlines set forth in §§ 46a-83 (b) and 46a-84 (b) had divested it of jurisdiction to proceed with a public hearing did not deprive Hyde of her constitutional due process rights because Hyde could bring a civil employment discrimination action against the plaintiff pursuant to General Statutes § 46a-101 et seq. Angelsea I, supra, 236 Conn. 699. General Statutes § 46a-101 provides in relevant part: “No [civil] action may be brought . . . unless the complainant has received a release from the commission in accordance with the provisions of this section. . . . The complainant . . . may request a release from the commission if his complaint with the commission is still pending after the expiration of two hundred ten days from the date of its filing. . . . Upon granting a release, the commission shall dismiss or otherwise administratively dispose of the discriminatory practice complaint pending with the commission . . . .” (Emphasis added.) Thus, we recognized in Angelsea I that, prior to dismissing Hyde’s complaint, the commission still had authority to accept and act upon Hyde’s request for a release to bring a civil employment discrimination action against the plaintiff, which she could not do without first requesting, and the commission granting, a release.

Moreover, our decision in Angelsea I was released on April 23, 1996, and on May 3, 1996, the defendants filed a timely motion in this court for reargument. Practice Book § 71-6 provides: “Unless the chief justice or chief judge shall otherwise direct, any stay of proceedings which was in effect during the pendency of the appeal shall continue until the time for filing a motion for reargument has expired, and, if a motion is filed, until ten days after its disposition, and, if it is granted, until the appeal is finally determined. If no stay of proceedings was in effect during the pendency of the appeal and the decision of the court having appellate jurisdiction would change the position of any party from its position during the pendency of the appeal, allproceed-ings to enforce or carry out the decision of the court having appellate jurisdiction shall be stayed until the time for filing a motion for reargument has expired, and, if amotion is filed, until its disposition, and, if it is granted, until the appeal is finally determined.” (Emphasis added.) Thus, the hearing officer appointed to adjudicate Hyde’s complaint lacked authority to render a final decision dismissing her complaint while the defendants’ motion for reargument in Angelsea I was pending before this court, i.e., until we denied the motion on June 6, 1996.

Further, as we have stated, Flyde can only bring a civil action against the plaintiff if she requests and, obtains a release from the commission. General Statutes § 46a-101. We conclude that even though prior to June 6, 1996, the effective date of P.A. 96-241, the commission could not have proceeded with a public hearing on Hyde’s complaint, her complaint had not been finally resolved by action of the commission on that date. Consequently, because Hyde’s complaint was pending before the commission on June 6, 1996, the effective date of P.A. 96-241, § 1 (a), the commission had jurisdiction to proceed with a public hearing on and after that date.

We note, moreover, that our conclusion that P.A. 96-241, § 1 (a), provides the commission with jurisdiction over Hyde’s complaint accords with the spirit, as well as the letter, of P.A. 96-241. The act gives the commission jurisdiction to proceed with a public hearing under three circumstances. First, § 1 (a) of the act provides the commission with jurisdiction over complaints that were filed before January 1,1996, and were still pending before the commission on June 6, 1996. See General Statutes § 46a-82b (a). Second, § 3 (a) of the act provides the commission with jurisdiction over complaints that were filed before January 1,1996, and were pending in the Superior Court on administrative appeal on June 6, 1996. See General Statutes § 46a-82d (a). Finally, § 3 (b) provides that complainants whose cases were dismissed by the Superior Court on the ground that the commission did not proceed in a timely manner may seek reinstatement of their appeals prior to October 1, 1996. See General Statutes § 46a-82d (b). Thus, by its terms, P.A. 96-241 evinces an intent to provide the commission with jurisdiction to proceed in all cases in which the commission had failed to meet the time deadlines imposed by §§ 46a-83 (b) and 46a-84 (b).

The legislative history of House Bill No. 5518, which eventually was enacted as P.A. 96-241 and codified in relevant part at §§ 46a-82b (a) and 46a-82d (a) and (b), also indicates unequivocally that the legislature intended that the commission have jurisdiction to proceed with respect to all complaints that had been filed prior to January 1, 1996, and in which the commission had failed to meet statutory deadlines. During the discussion of House Bill No. 5518 on the floor of the House of Representatives, Representative Richard D. Tulisano, a sponsor of the bill, remarked: “As a result [of Angelsea I\ we have proposed this amendment today which does a number of things. It keeps jurisdiction within the commission over any complaint filed . . . before January 1, 1996 .... [I]t also says that anything that was in court which may be subject to being dismissed . . . will not be dismissed for failure to comply with the time limits required of the [commission]. And the third, in the event that there is some case dismissed before this bill is passed, it will have an automatic right of reopening and reentry on the docket.” (Emphasis added.) 39 H.R. Proc., Pt. 15, 1996 Sess., p. 5187. Thus, the legislative history of P.A. 96-241 clearly manifests an intention that the commission be provided with authority to proceed on all complaints in which it had not complied with the deadlines set forth in §§ 46a-83 (b) and 46a-84 (b). An application of P.A. 96-241, § 1 (a), that failed to provide the commission with jurisdiction to proceed with a public hearing on Hyde’s complaint — a complaint that had not been fully resolved and that, therefore, still was pending on June 6, 1996— would contravene the clearly expressed intention of the legislature.

II

The plaintiffs next claim is that P.A. 96-241 is unconstitutional because it deprives the plaintiff of due process by abrogating its “vested rights” in the time limitations set forth in §§ 46a-83 (b) and 46a-84 (b). In effect, the plaintiff maintains that, because the commission did not act within the statutory time limits, it has a constitutionally protected interest in having Hyde’s employment discrimination claim adjudicated by a court, rather than by the commission. We disagree.

In Angelsea I, we concluded that although the commission’s failure to comply with the deadlines set forth in §§ 46a-83 (b) and 46a-84 (b) had deprived Hyde of an opportunity to litigate her employment discrimination claim before the commission, she had not been deprived of constitutional due process rights. Specifically, we concluded that, although Hyde had a constitutionally protected interest in an adequate and meaningful opportunity to have her case adjudicated, the statutes governing employment discrimination claims did not provide her a constitutionally protected interest in having her claim resolved in a particular forum, namely, in a hearing before the commission. Angelsea I, supra, 236 Conn. 699-700. Just as the statutes governing adjudication of employment discrimination claims do not provide Hyde with a constitutionally protected interest in litigating her claim in a particular forum, those statutes also do not provide the plaintiff with a constitutionally protected interest in having Hyde’s claim resolved by a court, rather than by the commission.

The existence of Hyde’s substantive right of action against the plaintiff does not depend on compliance with the deadlines set forth in §§ 46a-83 (a) and 46a-84 (b). Thus, we are not confronted with a situation in which, but for the enactment of P.A. 96-241, Hyde would have been barred irrevocably from obtaining the relief that she seeks from the plaintiff. See Hartford v. Freedom of Information Commission, 201 Conn. 421, 426, 518 A.2d 49 (1986) (defendant has constitutionally protected interest if, but for retroactive legislation, plaintiff would have been irrevocably barred from obtaining relief). Public Act 96-241 affects only the choice of forum for resolution of Hyde’s employment discrimination claim. It does not affect the substantive rights giving rise to Hyde’s claim or to the plaintiffs defense. Application of P.A. 96-241 to the present case, therefore, does not violate the plaintiffs constitutional due process rights to an adequate and meaningful opportunity to an adjudication of Hyde’s complaint.

Ill

The plaintiffs final claim is that P.A. 96-241 is unconstitutional because it violates the doctrine of separation of powers. This claim is based entirely upon the proposition that our decision in Angelsea I constituted a final judgment in the plaintiffs administrative appeal and, therefore, also constituted a final decision in the proceedings before the commission on Hyde’s complaint.

At oral argument, the plaintiff conceded that application of P.A. 96-241 to pending cases would not offend the doctrine of separation of powers. Because we have determined that our decision in Angelsea I did not resolve all of the parties’ rights regarding Hyde’s complaint and that her complaint was still pending before the commission on the date that P.A. 96-241 took effect, we do not address this claim.

The judgment is affirmed.

In this opinion the other justices concurred.

       Public Acts 1996, No. 96-241, provides in relevant part: “Section. 1. (NEW) (a) Notwithstanding any provision of (he general statules to the contrary, the Commission on Human Rights and Opportunities shall have jurisdiction over any complaint filed pursuant to section 46a-82 of the general statutes on or before January 1, 1996, which has not been finally abdicated or resolved by action of the commission, that the commission would have had jurisdiction over but for the failure of the Commission on Human Rights and Opportunities to comply with the time requirements of chapter 814c of the general statutes.
      “(b) If the commission fails to issue a determination of reasonable cause or no reasonable cause on any such complaint not later than January 1, 1997, the executive director of the commission shall issue forthwith a release of the complaint from the commission, allowing the complainant to bring a civil action. Upon receipt of a release pursuant to this section, the complainant may bring a civil action in accordance with the provisions of sections 46a-100,46a-101,46a-103 and46a-104 of the general statutes, notwithstanding the statute of limitations pursuant to section 46a-102 of the general statutes.
      “Sec. 2. (NEW) (a) Notwithstanding any provision of the general statutes to the contrary, the Commission on Human Rights and Opportunities shall have jurisdiction over any complaint filed pursuant to section 46a-82 of the general statutes after January 1, 1996, that the commission would have had but for the failure of the Commission on Human Rights and Opportunities to comply with the time requirements of section 46a-83 of the general statutes, provided the commission taires action to comply with such time requirements with respect to such complaints not later than June 30, 1996.
      “(b) The time frame contained in subsection (b) of section 46a-83 of the general statutes to conduct a review of the file shall be tolled if an answer is not timely received from the date the respondent’s answer is due pursuant to subsection (a) of section 46a-83 of the general statutes until the date the answer is actually received by the commission.
      “Sec. 3. (NEW) (a) Any action filed pursuant to section 46a-94a, 46a-95 or 4-183 of the general statutes concerning a complaint filed pursuant to section 46a-82 of the general statutes on or before January 1,1996, in which a final judgment has not been entered prior to [June 6, 1996], otherwise valid except for the failure of the Commission on Human Rights and Opportunities to comply with the time requirements of chapter 814c of the general statutes, is validated.
      “(b) If any action filed pursuant to section 46a-94a, 46a-95 or 4-183 of the general statutes concerning a complaint filed pursuant to section 46a-82 of the general statutes on or before January 1, 1996, has failed to be tried on its merits because the action has been dismissed by the Superior Court for want of jurisdiction due to the failure of the Commission on Human Rights and Opportunities to comply with the time requirements of chapter 814c of the general statutes, a party to the action may, on or before October 1,1996, petition the court to reopen such action. The court shall set aside the judgment and reinstate the case on the docket. . . .”
      “Sec. 7. This act shall take effect from its passage.”
      Public Act 96-241 is codified in relevant part at General Statutes §§ 46a-82b, 46a-82c and 46a-82d.

       General Statutes § 46a-82 (a) provides in relevant part: “Any person claiming to be aggrieved by an alleged discriminatory practice . . . may, by himself or his attorney, make, sign and file with the commission a complaint in writing under oath, which shall state the name and address of the person alleged to have committed the discriminatory practice, and which shall set forth the particulars thereof

       All references in this opinion to General Statutes §§ 46a-83 and 46a-84 are to those statutes as revised to 1993. Although the 1991 revisions of §§ 46a-83 and 46a-84 were in effect when Hyde’s injury is alleged to have occurred; see Six v. Thomas O’Connor & Co., 235 Conn. 790, 792 n.l, 669 A.2d 1214 (1996) (“ ‘[w]e look to the statute in effect at the date of injury to determine the rights and obligations between the parties’ ”); because the parties refer to the 1993 revisions and because the provisions are substantively identical, we use the 1993 revisions of §§ 46a-83 and 46a-84 in our discussion.
      General Statutes (Rev. to 1993) § 46a-83 (b) provides in relevant part: “Before issuing a finding of reasonable cause or no reasonable cause, the investigator shall afford each party and his representative an opportunity to provide written or oral comments on all evidence in the commission’s file, except as otherwise provided by federal law or any other provision of the general statutes. The investigator shall consider such comments in making his determination. The investigator shall make a finding of reasonable cause orno reasonable cause in writing and shall list the factual findings on which it is based not later than nine months from the date of filing of the complaint ....’’ (Emphasis added.)

       General Statutes (Rev. to 1993) § 46a-84 (b) provides: “Upon certification of the complaint, the executive director of the commission or his designee shall appoint a hearing officer to act as a presiding officer to hear the complaint and shall cause to be issued and served in the name of the commission a written notice, together with a copy of the complaint, as the same may have been amended, requiring the respondent to answer the charges of the complaint at a hearing before the presiding officer at a time and place to be specified in the notice, provided such hearing shall be held not later than ninety days after a finding of reasonable cause." (Emphasis added.)

       General Statutes § 4-176 (a) provides: “Any person may petition an agency, or an agency may on its own motion initiate a proceeding, for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of aprovision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency.”

       General Statutes § 4-176 (e) provides in relevant part: “Within sixty days after receipt, of a petition for a declaratory ruling, an agency in writing shall: (1) Issue a ruling declaring the validity of a regulation or the applicability of the provision of the general statutes, the regulation, or the final decision in question to the specified circumstances . . .

       General Statutes § 4-176 (h) provides: “A declaratory ruling shall be effective when personally delivered or mailed or on such later date specified by the agency in the ruling, shall have the same status and binding effect as an order issued in a contested case and shall be a final decision for purposes of appeal in accordance with the provisions of section 4-183. A declaratory ruling shall contain the names of all parties to the proceeding, the particular facts on which it is based and the reasons for its conclusion.”
      General Statutes § 4-183 provides in relevant part: “(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal.
      “(b) Aperson may appeal apreliminaiy, procedural or intermediate agency action or ruling to the Superior Court if (1) it appears likely that the person will otherwise qualify under this chapter to appeal from the final agency action or ruling and (2) postponement of the appeal would result in an inadequate remedy. . . .
      “ffi The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (X) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment. . . .”

       General Statutes § 52-235 provides: “(a) The Superior Court, or any judge of the court, with the consent of all parties of record, may reserve questions of law for the advice of the Supreme Court or Appellate Court in all cases in which an appeal could lawfully have been taken to said court had judgment been rendered therein.
      “(b) The court or judge making the reservation shall, in the judgment, decree or decision made or rendered in such cases, conform to the advice of the Supreme Court or the Appellate Court.”

       In determining in Angelsea I that Hyde still could bring a civil employment discrimination action against the plaintiff, we impliedly concluded that the circumstances of the case had operated to toll the statute of limitations set forth in General Statutes § 46a-102.

       General Statutes § 46a-101 provides in relevant part: “(a) No action may be brought in accordance with section 46a-100 unless the complainant has received a release from the commission in accordance with the provisions of this section.
      “(b) . . . The complainant, or his attorney, may request a release from the commission if his complaint with the commission is still pending after the expiration of two hundred ten days from the date of its filing.
      “(c) The executive director of the commission shall grant a release, allowing the complainant to bring a civil action, within ten business days after receipt of the request for the release, except that if a case is scheduled for public hearing, the executive director may decline to issue a release. The commission may defer acting on a request for a release for thirty days if the executive director of the commission, or his designee, certifies that he has reason to believe that the complaint may be resolved within that period.
      “(d) Upon granting a release, the commission shall dismiss or otherwise administratively dispose of the discriminatory practice complaint pending with the commission without cost or penalty assessed to any party.
      “(e) Any action brought by the complainant in accordance with section 46a-100 shall be brought within ninety days of the receipt of the release from the commission.”

       General Statutes § 46a-94a, however, provides the plaintiff with a right of administrative appeal to the Superior Court from a decision rendered on Hyde’s complaint by the hearing officer.

       A statutory amendment may be applied to cases pending at the time of its enactment if the legislature so intends and the statute does not enact a substantive change in the parties’ rights. State v. Ross, 230 Conn. 183, 282, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995); Enfield Federal Savings & Loan Assn. v. Bissell, 184 Conn. 569, 571, 440 A.2d 220 (1981).


source: Caselaw Access Project

license: Public Domain

text:
    EILEEN ALVARADO v. CRAIG BLACK
    (SC 16044)
    Callahan, C. X, and Berdon, Norcott, Katz and Peters, Js.
    Argued January 15
    officially released April 13, 1999

      Morris R. Borea, for the appellant (plaintiff).

      Timothy P. Pothin, with whom, on the brief, were Ronald J. Cohen, Eric Jones and Charles Platto, for the appellee (defendant).
   Opinion

CALLAHAN, C. J.

The sole issue in this appeal is whether, pursuant to General Statutes § 52-225a an injured plaintiff, whose economic damages are reduced because of the collateral source doctrine, is entitled to an offset from that reduction to reflect insurance premiums paid by the employer of the injured party. We conclude that such an offset is proper and reverse the judgment of the trial court.

The following facts and procedural history are undisputed. On May 11, 1994, the plaintiff, Eileen Alvarado, and the defendant, Craig Black, were involved in a motor vehicle accident. Thereafter, the plaintiff brought, this action against the defendant, alleging that she had sustained economic and noneconomic injuries as a result of the accident and that the defendant’s negligent conduct had caused her injuries. The only evidence the plaintiff presented to support her claim for economic damages consisted of medical bills in the amount of $3109.69. The jury returned a verdict in favor of the plaintiff and awarded her exactly that amount in economic damages and $4000 in noneconomic damages, for a total award of $7109.69.

The plaintiff moved to set the verdict aside and for an additur. Those motions were denied. The defendant then moved for a posttrial hearing, pursuant to § 52-225a, seeking to have the jury’s economic damages award reduced by the amount of medical expenses that had been paid by the plaintiffs health insurance carrier (insurer).

At the posttrial hearing, the defendant argued that, because the plaintiffs claim for economic damages had been based exclusively on the medical expenses that she had incurred as a result of the accident, and because those expenses had been paid in their entirety by her insurer, General Statutes §§ 52-225a and 52-225b entitled him to a reduction of the economic damages award to zero dollars. Without contesting the accuracy of the defendant’s description of the source of her economic damages, the plaintiff sought an offset from such reduction. She introduced evidence that her health insurance premiums in the amount of $3207.59 had been paid by her employer during the period in which she had incurred medical expenses as a result of the accident. She therefore maintained that, pursuant to § 52-225a (c), she was entitled to offset by that amount any reduction in economic damages because of collateral source payments, thereby negating any reduction in her economic damages. Rejecting the plaintiffs offset claim, the trial court granted the defendant’s motion for reduction of the plaintiffs economic damages award by $3109.69, the amount of medical expenses paid by the plaintiffs health insurer, and rendered judgment in favor of the plaintiff, awarding her zero dollars in economic damages and $4000 in noneconomic damages, for a total award of $4000. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

On appeal, the plaintiff argues that the trial court incorrectly concluded that the defendant was entitled to a reduction of the jury’s award of economic damages. Specifically, she maintains that, although § 52-225a (a) and (b) require that the award of economic damages be reduced by the amount of collateral source payments she had received for treatment of her injuries, § 52-225a (c) requires that any amount that was paid as premiums to secure the collateral source payments be offset against the collateral source payments in calculating economic damages. Consequently, she claims that, in calculating the reduction of the jury’s economic damages award, the trial court improperly failed to offset the $3207.59 in premiums her employer had paid to obtain her health insurance coverage against the $3109.69 in collateral source payments made by her health insurer. We agree.

Section 52-225a (a), which sets forth the statutory scheme relating to the calculation of collateral source reductions, provides in relevant part that “[i]n any civil action, whether in tort or in contract, wherein the claimant seeks to recover damages resulting from (1) personal injury or wrongful death . . . and wherein liability is admitted or is determined by the trier of fact and damages are awarded to compensate the claimant, the court shall reduce the amount of such award which represents economic damages ... by an amount equal to the total of amounts determined to have been paid under subsection (b) of this section less the total of amounts determined to have been paid under subsection (c) of this section . . . .” (Emphasis added.) Thus, under § 52-225a (a), calculation of the collateral source reduction is a two part process: (1) the total amount of collateral source benefits a claimant has received is determined in accordance with § 52-225a (b); and (2) that amount is then decreased, pursuant to § 52-225a (c), by the total amount that has been “paid, contributed, or forfeited . . . by, or on behalf of, the claimant or members of his immediate family” to secure those benefits.

Section 52-225a (b), which sets forth the manner in which the total amount of collateral source benefits a claimant has received is determined, provides in relevant part that “the court shall receive evidence from the claimant and other appropriate persons concerning the total amount of collateral sources which have been paid for the benefit of the claimant as of the date the court enters judgment.” Section 52-225b defines collateral sources as “any payments made to the claimant, or on his behalf, by or pursuant to: (1) Any health or sickness insurance . . . .” Because collateral source payments are defined to include payments made to, or on behalf of, a claimant pursuant to the claimant’s health insurance policy, the payments made by the plaintiffs health insurer constitute collateral source payments within the meaning of § 52-225b. Consequently, those payments properly may be included in the first step of the calculation of the amount by which the defendant is entitled to a reduction of the jury’s economic damages award.

The second step in the calculation of the collateral source reduction is governed by § 52-225a (c), which permits a claimant to offset the amount of collateral source payments the claimant has received by “any amount which has been paid ... by, or on behalf of, the claimant or members of his immediate family to secure [the claimant’s] right to [the] collateral source benefit . . . .” The plaintiff maintains that § 52-225a (c) entitles her to offset the collateral source reduction attributable to the payments made by her insurer by the amount paid by her employer to purchase her health insurance coverage. The defendant maintains, however, that § 52-225a (c) does not apply to the health insurance premiums paid by the plaintiffs employer. In the defendant’s view, § 52-225a (c) encompasses only health insurance premiums “the plaintiff, a family member, or some other personal representative actually paid . . . out of pocket which the plaintiff was required to pay.” We agree with the plaintiff.

We begin our analysis by noting that interpretation of § 52-225a is a matter of statutory construction. “Statutory construction is a question of law and therefore our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) General Motors Corp. v. Dohmann, 247 Conn. 274, 286, 722 A.2d 1205 (1998); Ferrigno v. Cromwell Development Associates, 244 Conn. 189, 195, 708 A.2d 1371 (1998).

“As with any issue of statutory interpretation, our initial guide is the language of the operative statutory provisions.” In re Baby Z., 247 Conn. 474, 498, 724 A.2d 1035 (1999); Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 102, 680 A.2d 1321 (1996). As previously noted, § 52-225a (c) permits a plaintiff to offset the amount of a reduction for collateral source benefits the plaintiff has received by “any amount which has been paid, contributed, or forfeited ... by, or on behalf of, the claimant or members of his immediate family to secure his right to any collateral source benefit which he has received as a result of such injury or death.” (Emphasis added.) Thus, the language of § 52-225a (c) manifests the legislature’s intention to permit a claimant to offset a reduction for collateral source benefits received from the claimant’s health insurance carrier by premiums the claimant paid to obtain health insurance coverage. See Fleming v. Garnett, 231 Conn. 77, 94, 646 A.2d 1308 (1994). Moreover, the inclusion of the phrase “on behalf of’ in § 52-225a (c) demonstrates that payment of insurance premiums need not be made directly by the claimant or by members of the claimant’s immediate family. Instead, that language clearly indicates that the legislature intended to provide claimants with an offset for premium payments made indirectly by the claimant or indirectly by the members of the claimant’s immediate family.

The payments an employer makes to purchase health insurance for an employee are not gratuitous. Instead, those payments are made as part of the employee’s compensation. Because an employer’s premium payments are really indirect payments by the employee, we conclude that the legislature intended that § 52-225a (c) encompass premiums paid by a claimant’s employer to purchase the claimant’s health insurance coverage. Otherwise, the words “on behalf of’ in § 52-225a (c) would have no meaning. See Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 303, 695 A.2d 1051 (1997).

The legislative history of § 52-225a, moreover, buttresses our conclusion regarding employer-paid health insurance premiums. Prior to the enactment of § 52-225a in 1985, Connecticut adhered to the common-law collateral source rule, which provides that “a defendant is not entitled to be relieved from paying any part of the compensation due for injuries proximately resulting from his act where payment [for such injuries or damages] comes from a collateral source, wholly independent of him. . . . The basis for our well-established collateral source rule is that a wrongdoer shall not benefit from a windfall from an outside source.” (Citations omitted; internal quotation marks omitted.) Rametta v. Stella, 214 Conn. 484, 489-90, 572 A.2d 978 (1990). In 1985, however, the legislature by enacting Public Acts 1985, No. 85-574 (P.A. 85-574), abolished the common-law collateral source rule in medical malpractice actions. Public Act 85-574, which was codified as § 52-225a, provided in relevant part: “In any action for damages for personal injury or wrongful death filed on or after October 1, 1985, whether in tort or in contract, arising out of the rendition of professional services by a health care provider in which liability is admitted or is determined by the trier of fact and damages are awarded to compensate the claimant, the court shall reduce the amount of such award by the total of all amounts paid to the claimant from all collateral sources which are available to him . . . [and] shall receive evidence from the claimant and other appropriate persons concerning the total amount of collateral sources which have been paid for the benefit of the claimant. The court shall also take testimony of any amount which has been paid, contributed, or forfeited by, or on behalf of, the claimant or members of his immediate family to secure his right to any collateral source benefit which he is receiving as a result of such injury or death, and shall offset any reduction in the award by any such amount.” (Emphasis added.)

The language of P.A. 85-574 that is now codified at § 52-225a (c) has remained unchanged in relevant part since its enactment in 1985. In 1986, however, § 52-225a was extended by No. 86-338, § 4, of the 1986 Public Acts to abolish the common-law collateral source rule in all personal injury actions. In 1987, § 52-225a was amended again by No. 87-227, § 4, of the 1987 Public Acts (P.A. 87-227). Public Act 87-227, § 4, divided § 52-225a into subsections and made clarifying changes. See 30 H.R. Proc., Pt. 16, 1987 Sess., p. 5664, remarks of Representative Richard D. Tulisano.

The language and legislative history of § 52-225a clearly indicate that § 52-225a was intended to prevent plaintiffs from obtaining double recoveries, i.e., collecting economic damages from a defendant and also receiving collateral source payments. See 28 H.R. Proc., Pt. 27, 1985 Sess., p. 9820, remarks of Representative Morag L. Vance; id., p. 9834, remarks of Representative Joseph D. Nardini; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 6, 1985 Sess., p. 1909, remarks of Senator Richard B. Johnston; 29 S. Proc., Pt. 10,1986 Sess., p. 3442, remarks of Senator Johnston; 29 H.R. Proc., Pt. 22,1986 Sess., pp. 8074-76, remarks of Representative Robert G. Jaekle. There is nothing inconsistent, however, between the statutory purpose of preventing double recoveries and an interpretation of § 52-225a (c) that permits plaintiffs an offset for premium payments that they or members of their family have made indirectly to obtain health insurance coverage. If the premiums had not been paid, there would have been no collateral source payments to reduce liability for economic damages.

Moreover, during its discussions of the bills that produced §§ 52-225a and 52-225b, the latter of which defines collateral sources, the legislature explicitly recognized that employees indirectly pay for insurance coverage provided by their employers. See, e.g., 29 S. Proc., Pt. 10, 1986 Sess., pp. 3429-33, remarks of Senators Reginald J. Smith and Anthony V. Avallone (employees receive less in wages in return for employer-paid medical benefits); Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1987 Sess., p. 452, remarks of Representative Edith G. Prague (same). Consequently, an interpretation of § 52-225a (c) that did not permit claimants an offset for employer-paid health insurance premiums would contravene both the statutory language and the legislative history of §§ 52-225a and 52-225b.

To summarize, § 52-225a (c) permits claimants to offset any collateral source benefits paid by the claimant’s health insurance carrier by the amount of premiums paid by the claimant, directly or indirectly to obtain benefits. Payments made by a claimant’s employer to purchase the claimant’s health insurance constitute indirect payments on the claimant’s behalf. Consequently, in the calculation of the collateral source reduction of the jury’s award of economic damages, the plaintiff was entitled to an offset for the amount of premiums her employer had paid on her behalf to purchase her health insurance.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment for the plaintiff in the amount of $7109.69.

In this opinion the other justices concurred.

       General Statutes § 52-225a provides: “(a) In any civil action, whether in tort or in contract, wherein the claimant seeks to recover damages resulting from (1) personal injury or wrongful death occurring on or after October 1,1987, or (2) personal injury or wrongful death, arising out of the rendition of professional services by a health care provider, occurring on or after October 1, 1985, and prior to October 1, 1986, if the action was filed on or after October 1, 1987, and wherein liability is admitted or is determined by the trier of fact and damages are awarded to compensate the claimant, the court shall reduce the amount of such award which represents economic damages, as defined in subdivision (1) of subsection (a) of section 52-572h, by an amount equal to the total of amounts determined to have been paid under subsection (b) of this section less the total of amounts determined to have been paid under subsection (c) of this section, except that there shall be no reduction for (1) a collateral source for which a right of subrogation exists and (2) that amount of collateral sources equal to the reduction in the claimant’s economic damages attributable to his percentage of negligence pursuant to section 52-572h.
      “(b) Upon a finding of liability and an awarding of damages by the trier of fact and before the court enters judgment, the court shall receive evidence from the claimant and other appropriate persons concerning the total amount of collateral sources which have been paid for the benefit of the claimant as of the date the court enters judgment.
      “(c) The court shall receive evidence from the claimant and any other appropriate person concerning any amount which has been paid, contributed, or forfeited, as of the date the court enters judgment, by, or on behalf of, the claimant or members of his immediate family to secure his right to any collateral source benefit which he has received as a result of such injury or death.”

       General Statutes § 52-225b provides: “For purposes of sections 52-225a to 52-225c, inclusive: ‘Collateral sources’ means any payments made to the claimant, or on his behalf, by or pursuant to: (1) Any health or sickness insurance, automobile accident insurance that provides health benefits, and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by him or provided by others; or (2) any contract or agreement of any group, organization, partnership or corporation to provide, pay for or reimburse the costs of hospital, medical, dental or other health care services. ‘Collateral sources’ do not include amounts received by a claimant as a settlement.”

       The defendant did not dispute that amount, either in the trial court or before this court.

       We express no opinion as to whether § 52-225a (c) permits claimants an offset for insurance premiums gratuitously paid by a party unrelated to the claimant

       An American Law Institute Reporters’ Study on the collateral source rule recognized that “employees often pay indirectly (by accepting lower wages) for insurance that is provided as a fringe benefit of employment . . . .” A.L.I., 2 Reporters’ Study, Enterprise Responsibility for Personal Injury (1991) p. 171. The Reporters’ Study recommended that “those who have directly or indirectly [by accepting lower wages] paid premiums for private insurance benefits that reduce the amount of their recovery should be given a credit equal to the amount of premiums paid for these benefits during the two years immediately preceding injury.” Id., pp. 176-77.


author: NORCOTT, J.

text:
    MARIA SERRANO v. J. WILLIAM BURNS, COMMISSIONER OF TRANSPORTATION, ET AL.
    (SC 15957)
    Borden, Berdon, Norcolt, Katz and Palmer, Js.
    Argued January 20
    officially released April 20, 1999

      James H. Lee, for the appellant (plaintiff).

      Lorinda S. Coon, with whom, on the brief, was Elizabeth Fairbanks Flynn, for the appellee (named defendant).
   Opinion

NORCOTT, J.

The sole issue in this appeal is whether the plaintiff, Maria Serrano, may recover damages pursuant to General Statutes § 13a-144 from the named defendant, J. William Burns, commissioner of transportation (commissioner), for personal injuries she allegedly had suffered as a result of slipping and falling in a public parking lot. The plaintiff appeals from the judgment of the trial court granting the commissioner’s summary judgment motion and dismissing her action. In this appeal, she argues that the trial court improperly granted the commissioner’s motion for summary judgment because: (1) that court improperly concluded that, as a matter of law, the parking lot where the plaintiff was injured was not covered by § 13a-144; and (2) the commissioner’s motion was unaccompanied by any affidavits or documentary evidence as required by Practice Book § 17-45. We agree with the plaintiffs first claim, and we reverse the trial court’s judgment on that basis. We do not, therefore, reach the plaintiffs second claim.

The following are the relevant allegations and pretrial procedural events. The plaintiff brought this action against the commissioner and the defendant city of Middletown (city), claiming that she was injured when, due to accumulation of ice and snow, she slipped and fell in the parking lot of a public rest area located between exits 19 and 20 on Interstate 91 in the city. In her complaint, the plaintiff alleged that both the city and the commissioner were legally obligated to maintain the parking lot in a reasonably safe condition. Although the plaintiff did not expressly claim so, her causes of action address the alleged liability of the commissioner and the city under § 13a-144 and General Statutes § 13a-149,* * respectively.

The defendants responded as follows. In its answer, the city denied having an obligation to maintain the parking lot in a reasonably safe condition. In his answer, however, the commissioner admitted that the department of transportation legally was obligated to maintain the parking lot in a reasonably safe condition. On the basis of the commissioner’s admission, the city moved for summary judgment.

While the city’s motion was pending, the commissioner also filed a motion for summary judgment. In his motion, the commissioner argued that the plaintiff could not recover damages from the state for her injuries because parking lots are not covered by § 13a-144. Subsequently, the city filed a supplemental motion for summary judgment in which it argued that parking lots also were not within the ambit of § 13a-149. The trial court granted the city’s motion for summary judgment, reasoning that parking lots are not covered by § 13a-149.

After the city’s motion had been granted, the commissioner also filed a supplemental memorandum of law in further support of his position that parking lots are not included within § 13a-144. In a written memorandum of law in opposition to the commissioner’s motions, the plaintiff argued that the commissioner was not entitled to summary judgment because whether the plaintiffs use of the parking lot was an incidental use of the highway, and thus covered by § 13a-144, was a genuine issue of fact for the jury. The trial court granted the commissioner’s motion for summary judgment, reasoning that parking lots are not included within § 13a-144.

The plaintiff appealed from both judgments of the trial court. The appeal with respect to the summary judgment in favor of the city, however, was dismissed by the Appellate Court due to untimeliness. Consequently, the only remaining appeal before this court is from the trial court’s judgment in favor of the commissioner.

The plaintiff claims that the trial court improperly determined that, as a matter of law, parking lots are not covered by § 13a-144, and thus that court should not have granted the commissioner’s summary judgment motion. We agree.

“Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established.” Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 402, 528 A.2d 805 (1987). Practice Book § 17-49 provides that “[t]he judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”

“In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Citations omitted; internal quotation marks omitted.) Connell v. Colwell, 214 Conn. 242, 246-47,571 A.2d 116 (1990). Summary judgment in favor of the defendant is properly granted if the defendant in its motion “raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.” Perille v. Raybestos-Manhat-tan-Europe, Inc., 196 Conn. 529, 543, 494 A.2d 555 (1985). On appeal, “we must decide whether the trial court erred in determining that there was no ‘genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' ” (Emphasis added.) Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 292, 596 A.2d 414 (1991). Our review of the trial court’s judgment is de novo because this appeal involves a question of law relating to the application of § 13a-144. Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995).

Our prior decision in Baker v. Ives, 162 Conn. 295, 294 A.2d 290 (1972), is instructive on this issue. In Baker, we held that recovery of damages for injuries sustained by travelers on state highways pursuant to § 13a-144 was not limited to injuries caused by defects in the “ ‘traveled portion’ ” of highways. Id., 302. In that case, the plaintiff had been injured after slipping and falling on an icy area that was not a traveled path on a state highway, but was within the state right-of-way line. Id., 297. The plaintiff brought an action against the state highway commissioner pursuant to § 13a-144 and, after a jury trial, the jury returned a verdict in favor of the plaintiff. Id., 296. The commissioner then moved to set aside the verdict and the trial court denied the commissioner’s motion. Id. On appeal, we affirmed the trial court’s ruling. Id., 307.

We affirmed the trial court in Baker because, in addition to the fact that the plaintiff had fallen in an area within the “state right-of-way line”; id., 297; “the proximity of the defect to the paved portion of the highway in conjunction with the fact that the locus of the fall was in an area where occupants of vehicles were invited by the state to park their cars for the purpose of walking from their cars to the stores in the vicinity warranted] the conclusion that [the] defect was ‘in, upon, or near the traveled path’ so as to ‘obstruct or hinder one in the use of the road for the purpose of traveling thereon’ . . . thereby allowing recovery under § 13a-144.” (Citation omitted.) Id., 302 n.3. The facts in Baker were such that the commissioner was not entitled to a directed verdict as a matter of law.

In Baker, moreover, we determined that “[§] 13a-144 authorizes civil suits against the sovereign for injuries caused by ‘the neglect or default of the state ... by means of any defective highway ... in the state highway system.’ This statute affords a right of recovery similar to that against the municipalities under § 13a-149 and is subject to the same limitations.” Id., 298. “The state is not [however] an insurer of the safety of travelers on the highways which it has a duty to repair. Thus, it is not bound to make the roads absolutely safe for travel. . . . Rather, the test is whether or not the state has exercised ‘reasonable care to make and keep such roads in a reasonably safe condition for the reasonably prudent traveler.’ . . . This duty of reasonable care extends to pedestrian travel as well as to vehicular traffic. . . . ‘A person must be on the highway for some legitimate purpose connected with travel thereon in order to obtain the protection of the statute. ... To qualify, a plaintiff is not obliged to remain seated in a vehicle proceeding on the highway. . . . Reasonable latitude is allowed to meet the exigencies of travel.’ . . . Nor does the defect have to be on the actual traveled portion of the highway.” (Citations omitted.) Id., 299.

“Whether there is a defect in such proximity to the highway so as to be considered ‘in, upon, or near the traveled path’ of the highway must be determined on a case-by-case basis after a proper analysis of its own particular circumstances, and is generally a question of fact for the jury, which will not be disturbed by this court unless the conclusion is one which could not be reasonably reached by the trier. ... It is also recognized that for purposes of recovery under § 13a-149 and § 13a-144, a highway can be considered defective, as claimed in the case at bar, by reason of ice or snow, depending, of course, on the circumstances and conditions.” (Citations omitted.) Id., 300.

In its memorandum of decision, the trial court in the present case distinguished Baker by concluding that, in Baker, this court did not conclude that a parking lot was covered by § 13a-144. Consequently, the trial court did not apply Baker when ruling on the commissioner’s motion. That court’s failure to apply Baker was improper.

In Baker, although we did not specifically conclude that parking lots were covered by § 13a-144, neither did we conclude that, as a matter of law, parking lots were excluded from coverage under § 13a-144. Rather, we set out a fact based test for determining whether an area that is outside the traveled path on a highway can nevertheless fit within the definition of defective highway as provided by § 13a-144. Id., 302 n.3. Our decision in Baker was, therefore, based on our conclusion that the jury reasonably could have found that the plaintiffs injury had occurred in an area within the state right-of-way line, and that the jury also could have found that the “defect was ‘in, upon, or near the traveled path’ so as to ‘obstruct or hinder one in the use of the road for the purpose of traveling thereon’ . . . .” Id.

In ruling on the commissioner’s motion, the trial court also cited our decision in Amore v. Frankel, 228 Conn. 358, 636 A.2d 786 (1994), for the proposition that because this court determined in Amove that “a driveway on the campus of the University of Connecticut is not within the ambit of § 13a-144,” it is unlikely that a parking lot away from the highway would be construed by this court to be covered by that statute. We disagree with this reasoning.

The driveway in Amove was located on property that was within the jurisdiction of a state agency other than the department of transportation. Id., 368. We concluded very specifically that the commissioner is not hable for injuries occurring on such areas unless “ ‘the state agency having jurisdiction over the property involved’ . . . [has requested that the commissioner] maintain such roads and drives pursuant to [General Statutes] § 13b-30 . . . .” Id., 365. In other words, our conclusion in Amove rested on the fact that the driveway in question was not within the “state highway system” because the property was under the jurisdiction of another state agency. Id., 368.

In focusing on the fact that the property in question in Amove was a driveway, the trial court ignored the consideration that our conclusion in Amove centered on whether it was the department of transportation, or some other state agency, that maintained jurisdiction over the property. Amove does not stand for the proposition that a driveway cannot, as a matter of law, be the site of a compensable injury under § 13a-144. Therefore, extrapolation from that proposition to the location at issue in the present case would be incorrect. As a result, the trial court’s reliance on Amove in its resolution of this matter was misplaced.

At issue in the present appeal is whether, in an action against the commissioner pursuant to § 13a-144, a personal injuiy occurring in a parking lot that is within the state right-of-way line, and is in a public rest area connected to a highway, is not compensable as a matter of law. In Baker v. Ives, supra, 162 Conn. 300, we stated that “a highway can be considered defective ... by reason of ice or snow, depending, of course, on the circumstances and conditions”; that the “duty of reasonable care extends to pedestrian travel as well as to vehicular traffic”; id., 299; and that § 13a-144 applies to “defectjs] in such proximity to the highway so as to be considered ‘in, upon, or near the traveled path’ . . . .” Id., 300. With respect to the latter, facts showing that highway travelers are invited by the state to use a rest stop along the highway may establish that the use of such an area is so closely related to travel upon the highway that such an area is part of the state highway system. We see no significant difference between an area within the state right-of-way line that is adjacent to the traveled portion of a highway, and to which, as in Baker, the travelers are invited by the state, and an area that is away from the traveled portion of the highway, which otherwise fits the factors set out in Baker. We conclude, therefore, that in light of Baker, the question of whether the plaintiff is entitled to recover pursuant to § 13a-144 is one for the fact finder.

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

In this opinion the other justices concurred.

       This appeal originally was taken to the Appellate Court from the trial court’s granting of summary judgment in favor of the named defendant. We transferred the appeal to this court pursuant to Practice Book § 4023, now § 65-1, and General Statutes § 51-199 (c).

       General Statutes § 13a-144 provides: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court. No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. Such action shall be tried to the court or jury, and such portion of the amount of the judgment rendered therein as exceeds any amount paid to the plaintiff prior thereto under insurance liability policies held by the state shall, upon the filing with the Comptroller of a certified copy of such judgment, be paid by the state out of the appropriation for the commissioner for repair of highways; but no costs or judgment fee in any such action shall be taxed against the defendant. This section shall not be construed so as to relieve any contractor or other person, through whose neglect or default any such injury may have occurred, from liability to the state; and, upon payment by the Comptroller of any judgment rendered under the provisions of this section, the state shall be subrogated to the rights of such irqured person to recover from any such contractor or other person an amount equal to the judgment it has so paid. The commissioner, with the approval of the Attorney General and the consent of the court before which any such action is pending, may make an offer of judgment in settlement of any such claim. The commissioner and the state shall not be liable in damages for injury to person or property when such injury occurred on any highway or part thereof abandoned by the state or on any portion of a highway not a state highway but connecting with or crossing a state highway, which portion is not within the traveled portion of such state highway. The requirement of notice specified in this section shall be deemed complied with if an action is commenced, by a writ and complaint setting forth the injury and a general description of the same and of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of such notice.”

       Practice Book § 17-45 provides: "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. The motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs. The adverse party prior to the day the case is set down for short calendar shall file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.”

       General Statutes § 13a-149 provides: “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”

       Pursuant to Practice Book § 13-22 concerning requests for admission, the city obtained the following admission from the commissioner: “On the date of the incident alleged in the plaintiffs complaint, the State of Connecticut Department of Transportation had a legal obligation to maintain the subject parking lot in a reasonably safe condition.” The city also submitted an affidavit by Salvatore Fazzino, the director of public works for the city, in further support of its contention that the city was not responsible for maintaining the parking lot.

       In her objection to the city’s supplemental motion for summary judgment, the plaintiff argued that summary judgment was inappropriate because there remained disputed and unresolved material issues of fact regarding the city’s responsibility for maintaining the parking lot.

       Whether the place of injury is within the state right-of-way line is the threshold inquiry in determining the state’s liability, if any, under § 13a-144. Although the trial court recognized the significance of the fact that the plaintiff in Baker had been injured in an area within the state right-of-way line, the court did not specifically find that the plaintiff, in the present case, had not been injured within the state right-of-way line. As the movant, the commissioner had the burden to propound facts to show that the place of the plaintiff’s injury was not within the state right-of-way line. Although the commissioner could have met his burden by reference to appropriate public records, the commissioner did not do so.

       Under Practice Book § 17-45, a motion for summary judgment must be supported by appropriate documents. The record before us does not show that there was anything before the trial court upon which that court could have determined the location of the parking lot and its relative distance to the traveled portion of the highway. Consequently, we are unable to review that court’s conclusion with respect to the proximity of the parking lot to the highway.