text:
    Connecticut Bank and Trust Company, Inc. v. Geoffrey J. Winters et al. Paine Webber Jackson and Curtis, Inc. v. Geoffrey J. Winters
    (14459) (14460)
    Peters, C. J., Callahan, Borden, Katz and F. X. Hennessy, Js.

      Argued December 9, 1992
    decision released March 23, 1993

      Jan A. Marcus, with whom was Alan R. Spirer, for the appellant (defendant PaineWebber, Inc.).

      Edward P. McCreery III, with whom, on the brief, was Alice A. Carey, for the appellee (defendant Union Trust Company).

      John Haven Chapman, for the appellee (intervenor Chapman, Moran, Hubbard and Zimmermann).

      Jan A. Marcus, with whom was Alan R. Spirer, for the appellant (plaintiff).

      John Haven Chapman, with whom, on the brief, was Brian E. Moran, for the appellee (defendant).
   Peters, C. J.

The principal issues in these appeals are (1) whether the trial court’s judgment is a “final judgment” that triggers the filing requirement for a complaint for setoff pursuant to General Statutes § 52-141, and (2) whether the trial court abused its equitable discretion by denying setoff in one action while granting setoff in the other action. We affirm the judgment of the Appellate Court in Docket No. 14460 and direct the trial court to issue an articulation in Docket No. 14459.

These appeals arise from two separate actions. Paine Webber Jackson & Curtis, Inc. v. Winters (Docket No. 14460) (the PaineWebber action) is a breach of contract action brought by PaineWebber, Inc. (PaineWebber), against Geoffrey Winters, a former PaineWebber employee, for Winters’ refusal to repay a loan made to him by PaineWebber during his employment. Winters thereafter asserted twelve counterclaims against PaineWebber. PaineWebber filed a timely offer of judgment, offering to settle its breach of contract claim for $295,000. Winters neither responded to this offer nor filed an offer of judgment on his counterclaims. After a jury trial, on May 15, 1989, the trial court rendered two separate judgments: for PaineWebber on the breach of contract claim in the amount of $440,000; and for Winters on five of the counterclaims, in the amount of $440,000.18. PaineWebber then unsuccessfully moved to set aside the judgment in favor of Winters and for interest on the judgment in favor of PaineWebber pursuant to General Statutes (Rev. to 1989) § 52-192a.

PaineWebber appealed to the Appellate Court, claiming, inter alia, that the trial court had improperly denied its motion for interest. Paine Webber Jackson & Curtis, Inc. v. Winters, 22 Conn. App. 640, 579 A.2d 545 (1990). Without disturbing the jury verdicts, the Appellate Court reversed the trial court’s denial of PaineWebber’s motion for interest and directed the trial court to award interest, the amount of which was approximately $245,000. Id., 656. Winters unsuccessfully sought certification to appeal to this court from the Appellate Court’s decision. Paine Webber Jackson & Curtis, Inc. v. Winters, 216 Conn. 820, 581 A.2d 1055 (1990).

Within twenty-four hours of issuance of the Appellate Court’s judgment awarding PaineWebber interest on the judgment in its favor, PaineWebber filed in the trial court both a complaint for setoff of the judgments pursuant to § 52-141 and a motion for equitable setoff. The trial court denied the setoff, determining that (1) PaineWebber had filed its complaint for setoff more than twenty-four hours after final judgment, in violation of the requirements of § 52-141, and (2) PaineWebber was not entitled on equitable grounds to a setoff of the judgments. PaineWebber appealed to the Appellate Court, which affirmed. Paine Webber Jackson & Curtis, Inc. v. Winters, 26 Conn. App. 322, 600 A.2d 1048 (1991). We subsequently granted PaineWebber’s petition for certification.

Connecticut Bank & Trust Co. v. Winters (Docket No. 14459) (the foreclosure action) is an action seeking to foreclose Winters’ interest in property in Greenwich. PaineWebber was one of the defendants in the foreclosure action because, during the PaineWebber litigation, PaineWebber had secured a prejudgment attachment on this property, becoming the third most senior encumbrancer. After a foreclosure sale that yielded $1.1 million, the trial court ordered distribution of the proceeds to the two most senior encumbrancers.

The trial court, in the foreclosure action, thereafter granted an equitable setoff of the PaineWebber judgments, the effect of which was to reduce the amount owed by Winters to PaineWebber from approximately $685,000, the amount of its judgment plus interest, to approximately $245,000, the amount of interest. The trial court then denied PaineWebber’s motion to stay proceedings pending its appeal from the trial court’s denial of setoff in the PaineWebber action. After reserving for PaineWebber a portion of the remaining foreclosure sale proceeds in order to protect PaineWebber’s right to interest, pending this court’s decision on Winters’ petition for certification from the Appellate Court’s award of interest in the PaineWebber action, the trial court ordered distribution to the fourth and fifth most senior encumbrancers, Weatherly Securities, a mortgagee, and Union Trust Company, respectively.

PaineWebber appealed to the Appellate Court from the trial court’s distribution order and denial of its motion for a stay, and the Appellate Court affirmed. Connecticut Bank & Trust Co. v. Winters, 26 Conn. App. 317, 600 A.2d 1046 (1991). We subsequently granted PaineWebber’s petition for certification.

In these appeals, PaineWebber raises several claims seeking to achieve consistent decisions regarding setoff in the two actions. PaineWebber argues that, if the trial court’s decisions regarding setoff are affirmed, PaineWebber will be obligated to pay $440,000.18, the full judgment rendered against it in the PaineWebber action, even though its security in the foreclosure proceeds has been reduced to $260,000, which the trial court reserved to protect PaineWebber’s right to interest on the PaineWebber judgment rendered in its favor. Specifically, in the PaineWebber case, PaineWebber claims that the Appellate Court improperly affirmed the trial court’s determinations that: (1) PaineWebber was not entitled to a setoff of the judgments on equitable grounds; and (2) PaineWebber had untimely filed its complaint for setoff. In the foreclosure action, PaineWebber claims that the Appellate Court’s affirmance of the trial court’s equitable setoff yields an unjust result and has caused extreme prejudice to PaineWebber.

I

The PaineWebber Action

A

PaineWebber claims that its complaint for setoff was timely filed within twenty-four hours of the Appellate Court’s August, 1990 judgment, in compliance with the requirement of § 52-141 that a complaint for setoff be filed within twenty-four hours of “final judgment.” PaineWebber contends, therefore, that the trial court improperly concluded that the complaint was untimely. Winters claims, on the other hand, that, to comply with § 52-141, PaineWebber was required to file its complaint within twenty-four hours of the trial court’s May, 1989 judgment, and that, accordingly, PaineWebber’s complaint, filed in August, 1990, was untimely. We agree with Winters that § 52-141 required PaineWebber to file its complaint for setoff within twenty-four hours of the trial court judgment, notwithstanding the subsequent appeal.

Pursuant to § 52-141, a defendant against whom a tort judgment has been rendered may request a court to set off that judgment against a debt owed to the defendant by the plaintiff. Section 52-141 (b) (4) requires, however, that the complaint for setoff be filed within twenty-four hours of “final judgment” on the tort claim. The issue, therefore, is whether PaineWebber complied with the twenty-four hour filing requirement, and this inquiry turns on whether the trial court judgment was the “final judgment” for the purposes of § 52-141 (b) (4). This question is an issue of first impression in this state.

In our determination of the meaning of “final judgment” in the context of § 52-141 (b) (4), we consider, at the outset, whether that term is ambiguous. Ordinarily, if statutory language is clear and unambiguous, there is no need for statutory construction. Mercado v. Commissioner of Income Maintenance, 222 Conn. 69, 74, 607 A.2d 1142 (1992); Manning v. Barenz, 221 Conn. 256, 260, 603 A.2d 399 (1992). If statutory language is ambiguous, however, the court must construe it in accordance with the statute’s background and purpose, as well as with common sense. In re Valerie D., 223 Conn. 492, 512-13, 613 A.2d 748 (1992); Warkentin v. Burns, 223 Conn. 14, 20, 610 A.2d 1287 (1992); Jutkowitz v. Department of Health Services, 220 Conn. 86, 102, 596 A.2d 374 (1991).

We are persuaded that the “final judgment” language of § 52-141 (b) (4) is ambiguous. Our case law has repeatedly recognized that the term “final judgment” may have different meanings in different contexts. “[T]he effect of a pending appeal upon an otherwise final judgment has aptly been characterized as ‘[o]ne of the most troublesome problems in applying the rule of finality [of judgments],’ because this is an area in which ‘[t]here are no technically precise and universally recognized rules . . . .’ ” Preisner v. Aetna Casualty & Surety Co., 203 Conn. 407, 413-14, 525 A.2d 83 (1987), quoting F. James & G. Hazard, Civil Procedure (3d Ed. 1985) § 11.4, p. 592. “[W]e have recognized that the relationship between a pending appeal and a judgment depends upon the nature of the issue that is to be addressed. Accordingly, a trial court judgment has been held to be final, despite a pending appeal, insofar as the issue was the triggering of the statute of limitations . . . the continuing validity of interlocutory alimony orders ... or the applicability of the rules of res judicata.” (Citations omitted.) Id., 414; see Capalbo v. Planning & Zoning Board of Appeals, 208 Conn. 480, 486, 547 A.2d 528 (1988). Finally, we note that § 52-141 itself does not define “final judgment” or otherwise give guidance as to its meaning.

We must, therefore, construe the term “final judgment” as it is used in § 52-141 (b) (4). In determining its meaning, we are guided by the rule announced in Paranteau v. DeVita, 208 Conn. 515, 522-23, 544 A.2d 634 (1988), that, for the purpose of appealability, a trial court judgment on the merits is the final judgment, notwithstanding the pendency of a postjudgment claim for attorney’s fees. See General Statutes § 52-263. In Paranteau, we held that a bright-line rule as to when an appeal must be taken is preferable to a retrospective consideration of whether a postjudgment claim is so integral to the judgment on the merits that that judgment is not appealable until the postjudgment claim has been decided. We noted that such a bright-line rule would promote certainty and efficiency. Paranteau v. DeVita, supra, 522-23.

Similarly, in cases involving § 52-141, it would be inappropriate for the timeliness of a complaint for setoff to depend upon a retrospective, artificial determination of the finality of the trial court judgment. Such a case-by-case approach would create uncertainty and confusion regarding both the procedural obligations of the litigants and the financial outcome in a case in which the defendant seeks to set off a tort judgment rendered against it.

For the same reasons that we find the reasoning of Paranteau persuasive in this context, we decline to rely on Preisner v. Aetna Casualty & Surety Co., supra, in our determination of the meaning of “final judgment” in § 52-141 (b) (4). In Preisner, we enunciated a test for determining if a trial court judgment is a “final judgment” despite a subsequent appeal: “If the trial court’s judgment is sustained [on appeal], or the appeal dismissed, the final judgment ordinarily is that of the trial court. If, however, there is reversible error, the final judgment is that of the appellate court.” Id., 415. “The finality of a judgment may, [therefore], depend upon the outcome of the pending appeal.” Id. This test is not useful in determining the meaning of “final judgment” in the context of § 52-141 (b) (4), however, because the parties would not know until the outcome of an appeal whether the trial court judgment or the appellate court judgment was properly considered the “final judgment.”

Our conclusion that the trial court’s judgment was the “final judgment” for the purpose of § 52-141 (b) (4) is bolstered by the fact that construing that term to refer to the judgment rendered on appeal, as PaineWebber urges, would result in an unworkable intersection of § 52-141 (b) (4) and Practice Book § 4009, which requires an appeal from a final judgment to be filed within twenty days of the issuance of notice of that judgment. For example, upon a trial court’s tort judgment in favor of the plaintiff, a defendant seeking to set off the judgment against a debt owed by the plaintiff to the defendant will not necessarily know within twenty-four hours if the plaintiff will appeal from the judgment. Moreover, until twenty days have passed, the defendant itself will not necessarily have decided, and is not required to have decided, whether to appeal from the trial court’s judgment.

According to PaineWebber’s reading of § 52-141 (b) (4), therefore, the parties would know whether the trial court judgment was the “final judgment” only upon expiration of the twenty day appeal period. That statute, however, contemplates that the finality of the judgment will be known within twenty-four hours of its rendering. We, therefore, reject PaineWebber’s construction, which would create an unpredictable and thereby unworkable rule. Cf. Fairfield Plumbing & Heating Supply Corporation v. Kosa, 220 Conn. 643, 649-51, 600 A.2d 1 (1991); Turner v. Turner, 219 Conn. 703, 712-13, 595 A.2d 297 (1991).

We conclude that the trial court’s May, 1989 judgments on the merits were the final judgments for purposes of § 52-141 (b) (4) and, therefore, that PaineWebber was required to file its complaint for setoff within twenty-four hours of those judgments. By filing its complaint for setoff in August, 1990, PaineWebber failed to comply with § 52-141 (b) (4). Accordingly, the trial court properly denied PaineWebber’s complaint for setoff.

B

PaineWebber also contends that the trial court improperly determined that PaineWebber was not entitled to a setoff on equitable grounds. We disagree.

This court will reverse a trial court’s exercise of its equitable powers only if it appears that the trial court’s decision is unreasonable or creates an injustice. Fel lows v. Martin, 217 Conn. 57, 67-68, 584 A.2d 458 (1991); Godiksen v. Miller, 6 Conn. App. 106, 109-10, 503 A.2d 617 (1986). “[EJquitable power must be exercised equitably . . . [but] [t]he determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) Reynolds v. Ramos, 188 Conn. 316, 320, 449 A.2d 182 (1982). Although PaineWebber correctly notes that the denial of a legal setoff does not preclude an award of setoff on equitable grounds; Betts v. Connecticut Life Ins. Co., 78 Conn. 442, 450-51, 62 A. 345 (1905); a trial court may grant an equitable setoff only to “enforce the simple but clear natural equity.” Spurr v. Snyder, 35 Conn. 172, 174 (1868).

In this case, it was not unreasonable for the trial court to deny PaineWebber’s motion for equitable setoff. The trial court’s memorandum of decision on the setoff issue stated: “At this time, it would be fundamentally unfair to grant [PaineWebber’s] request for [an equitable] setoff. The Appellate Court has directed the trial court to award interest to [PaineWebber pursuant to General Statutes § 52-192a] on the theory [that PaineWebber] has received a judgment in its favor providing for an ultimate recovery in excess of the offer of judgment which it made earlier in the proceedings. If the awards had been setoff at trial and one judgment rendered in favor of the defendant for eighteen cents, the plaintiff’s claim for prejudgment interest might have been viewed in a different light by the trial court and the Appellate Court.” We conclude that the trial court, before which the parties appeared, reasonably determined that PaineWebber, having decided not to seek setoff until it had secured an award of interest on the judgment in its favor, could not later seek to set off the judgment in its favor against the judgment in Winters’ favor. Accordingly, we reject PaineWebber’s claim.

II

The Foreclosure Action

PaineWebber contends, in the foreclosure action, that the trial court improperly granted an equitable setoff of the PaineWebber judgments. Although the Appellate Court held that the trial court had not abused its discretion by granting an equitable setoff in the foreclosure action because the trial court had not been bound by its denial of a setoff in the PaineWebber action, we determine that the trial court’s memorandum of decision is not amenable to meaningful appellate review of the trial court’s decision to grant an equitable setoff. Accordingly, we remand this case for further articulation on that issue. See Practice Book § 4061; see also, e.g., Lauer v. Zoning Commission, 220 Conn. 455, 473, 600 A.2d 310 (1991); Rostain v. Rostain, 213 Conn. 686, 693-95, 569 A.2d 1126 (1990).

The trial court determined that distribution of the foreclosure sale proceeds to PaineWebber in the full amount of its PaineWebber judgment, without setting off the judgment in favor of Winters, would be “extremely inequitable.” Because PaineWebber did not move for articulation of the trial court’s decision pursuant to Practice Book § 4051, the entire record on which we could review PaineWebber’s claim consists of this conclusory statement by the trial court.

“We have repeatedly stated that it is the appellant’s responsibility to provide an adequate record for review. . . . Where the factual or legal basis of the trial court’s decision is unclear, the appellant should file a motion for articulation pursuant to Practice Book § 4051.” (Citations omitted; internal quotation marks omitted.) Walton v. New Hartford, 223 Conn. 155, 164-65, 612 A.2d 1153 (1992). In the absence of a motion for articulation, it would be sheer speculation for this court to assume that the trial court exercised its equitable powers unreasonably. See DiBerardino v. DiBerardino, 213 Conn. 373, 385, 568 A.2d 431 (1990).

We decline, however, to dispose of this case on the basis of PaineWebber’s failure to move for an articulation. Rather, we exercise our authority to order a remand because this case required the trial court, presiding over two separate but related cases, to exercise its equitable powers to achieve substantial justice among the parties, and the present record provides an insufficient basis upon which to review that exercise of equitable discretion.

The judgment of the Appellate Court in Docket No. 14460 is affirmed; the judgment of the Appellate Court in Docket No. 14459 is vacated and the matter is remanded to that court with direction that it be remanded to the trial court for further articulation in accordance with this opinion.

In this opinion the other justices concurred.

       Although we denied the motion, filed by PaineWebber, Inc. (see footnote 3), seeking consolidation of these appeals, we consider them in one opinion because of the overlap of some issues.

       “[General Statutes] Sec. 52-141. set-off in action for trespass or tort, (a) In a civil action for trespass to real or personal property or for a tort, unaccompanied by force, resulting in consequential injury, a defendant may set off against any judgment rendered against him any debt which he holds, jointly or severally, against the plaintiff, subject to the conditions contained in subsections (b) and (c) of this section.
      “(b) (1) This section shall not apply to a civil action for damages for taking property exempt from execution.
      “(2) No debt which was acquired by a defendant by purchase or assignment after the accruing of the cause of action upon which the judgment is rendered may be allowed as a set-off under this section.
      “(3) An assignment of the judgment by the plaintiff shall not affect the right of set-off and any such assignment shall be taken subject to the right of set-off.
      “(4) Any such set-off shall be claimed by filing a complaint in the court in which the judgment has been rendered within twenty-four hours after final judgment.
      “(5) No set-off may be allowed in cases where the defendant had the right of set-off on the trial of the case.
      “(c) (1) The court shall make any proper set-off immediately if the debt claimed is admitted by the plaintiff or evidenced by judgment.
      “(2) If a claimed set-off is not admitted or evidenced by judgment and is denied by the plaintiff, it shall not be allowed unless the defendant has instituted a suit therefor prior to the rendition of judgment in the original action. If any such suit is pending at the time of rendition of judgment for the plaintiff in the original action, the court rendering judgment shall stay execution thereon until the final termination of the suit. Upon termination of the suit, the court shall allow the set-off in the original action in accordance with the amount adjudged to be due on the set-off claim in the suit.”

       PaineWebber, Inc., was formerly known as Paine Webber Jackson & Curtis, Inc.

       Initially, the trial court granted summary judgment in favor of PaineWebber on its claim. The Appellate Court set aside this judgment, however, because factual issues remained, and remanded the matter. Paine Webber Jackson & Curtis, Inc. v. Winters, 13 Conn. App. 712, 722, 539 A.2d 595, cert. denied, 208 Conn. 803, 545 A.2d 1100 (1988). The jury trial was held on remand.

       Winters was awarded damages on his counterclaims alleging defamation and conversion of personal files. He also prevailed on his counterclaims alleging breach of employment contract, intentional interference with contract and intentional interference with prospective advantage, but was awarded only nominal damages on those claims.

       PaineWebber claims that creditors of Winters have attached the judgment rendered in his favor in the PaineWebber action, obligating PaineWebber to pay the full $440,000.18.

       “[General Statutes (Rev. to 1989)] Sec. 52-192a. offer of judgment BY PLAINTIFF. ACCEPTANCE BY DEFENDANT. COMPUTATION OF INTEREST, (a) After commencement of any civil action based upon contract or for the recovery of money only, the plaintiff may before trial file with the clerk of the court a written ‘offer of judgment’ signed by him or his attorney, directed to the defendant or his attorney, offering to settle the claim underlying the action and to stipulate to a judgment for a sum certain. The plaintiff shall give notice of the offer of settlement to the defendant’s attorney, or if the defendant is not represented by an attorney, to the defendant himself. Within thirty days after being notified of the filing of the ‘offer of judgment,’ the defendant or his attorney may file with the clerk of the court a written ‘acceptance of offer of judgment’ agreeing to a stipulation for judgment as contained in plaintiff’s ‘offer of judgment.’ Upon such filing, the clerk shall enter judgment immediately on the stipulation. If the ‘offer of judgment’ is not accepted within thirty days, the ‘offer of judgment’ shall be considered rejected and not subject to acceptance unless refiled. Any such ‘offer of judgment’ and any ‘acceptance of offer of judgment’ shall be included by the clerk in the record of the case.
      “(b) After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment,’ the court shall add to the amount so recovered twelve per cent annual interest on said amount, computed from the date such offer was filed in actions commenced before October 1, 1981. In those actions commenced on or after October 1,1981, the interest shall be computed from the date the complaint in the civil action was filed with the court if the ‘offer of judgment’ was filed not later than eighteen months from the filing of such complaint. If such offer was filed later than eighteen months from the date of filing of the complaint, the interest shall be computed from the date the ‘offer of judgment’ was filed. The court may award reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly. This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney’s fees in accordance with the provisions of any written contract between the parties to the action.”

       PaineWebber’s complaint for setoff calculated prejudgment interest due as $244,758, plus postjudgment interest.

       In addition to denying PaineWebber’s complaint for setoff because of its untimeliness, the trial court denied the complaint on the ground that General Statutes § 52-141 was inapplicable in this case because the tort claim and the breach of contract claim had been resolved together. PaineWebber challenged this holding, as well as the untimeliness holding, in the Appellate Court, and the Appellate Court affirmed the trial court on the untimeliness ground. In this court, PaineWebber challenges the trial court’s denial of its complaint for setoff only on the untimeliness ground. We, therefore, do not address the trial court’s holding that § 52-141 did not apply in this case.

       "We granted certification limited to the following issues: “1. Did the Appellate Court improperly conclude that the ‘only issue’ in the appeal below was to determine when a judgment is ‘final’ for purposes of General Statutes § 52-141 (b) (4), not ruling upon Paine Webber’s argument concerning entitlement to an equitable setoff of opposing judgments?
      “2. Did the Appellate Court improperly fail to reverse the trial court and to order an equitable setoff of the judgments obtained by Paine Webber and by Winters, especially in view of the fact that the same trial court had ordered an equitable setoff of the same judgments in the matter of Connecticut Bank & Trust Co. v. Winters, 26 Conn. App. 317, 600 A.2d 1046 (1991)?
      “3. Did the Appellate Court improperly conclude that the judgment in this matter was ‘final’ for purposes of General Statutes § 52-141 (b) (4) at the time when the trial court rendered judgment?
      “4. Did the Appellate Court improperly refuse to consider the issues raised in this appeal with the issues of the appeal in Connecticut Bank & Trust Co. v. Winters, supra, when both appeals involved the same issue of equitable setoff?
      “5. Are the issues in this appeal moot if the affirmance by the Appellate Court of the trial court’s allowance oí a setoff in Connecticut Bank & Trust Co. v. Winters, supra, is upheld?” Paine Webber Jackson & Curtis, Inc. v. Winters, 221 Conn. 912, 912-13, 602 A.2d 11 (1992).f

       The parties involved in this appeal are PaineWebber, Inc., which held a prejudgment attachment on the subject property; Union Trust Company, a judgment lienor; and Chapman, Moran, Hubbard and Zimmermann, an intervenor that held a charging lien on the judgment rendered in the PaineWebber action in favor of Winters.

       PaineWebber claims that the amount of its lien is $425,000, but the record reveals that the amount may, in fact, be $325,000. This discrepancy need not be resolved for the purpose of this appeal.

       The two most senior encumbrancers were Connecticut Bank and Trust Company, N.A., a mortgagee and the plaintiff in the foreclosure action, and Citibank, N.A., also a mortgagee. Neither is involved in this appeal.

       Because PaineWebber claimed postjudgment interest under General Statutes § 52-192a in addition to prejudgment interest; see footnote 8; the trial court reserved $260,000 of foreclosure sale proceeds for PaineWebber.

       We granted certification limited to the following issues: “1. Did the Appellate Court improperly affirm the trial court’s decision to set off the judgments obtained by Paine Webber and by Winters in this foreclosure action when the Appellate Court simultaneously affirmed a denial of the same request for a setoff in the Paine Webber Jackson & Curtis, Inc. v. Winters, 26 Conn. App. 322, 600 A.2d 1048 (1991), matter?
      “2. Did the Appellate Court improperly permit other creditors of defendant Winters, junior in priority to Paine Webber, to set off judgments obtained by Paine Webber against Winters and Winters against Paine Webber, thereby reducing Paine Webber’s claim to the foreclosure proceeds in this matter from $425,000 to $260,000?
      “3. Did the Appellate Court improperly fail to consider the issues of this matter with the issues of the appeal in Paine Webber Jackson & Curtis, Inc. v. Winters, supra, when the same question of equitable setoff existed in both cases?” Connecticut Bank & Trust Co. v. Winters, 221 Conn. 911, 912, 602 A.2d 10 (1992).

       Although PaineWebber claims that Winters is effectively insolvent and that the foreclosure proceeds are the only asset from which PaineWebber might receive payment, Winters disputes that claim.

       Because the Appellate Court affirmed the trial court’s judgment without discussing the issue of equitable setoff, we review the trial court’s disposition of this issue, rather than the Appellate Court’s disposition of it. We reject PaineWebber’s contention that the Appellate Court’s omission constitutes “reversible error,” because the claim receives full consideration herein.

       In its brief to this court, PaineWebber acknowledged that it would withdraw its appeal in the foreclosure action if we reverse the Appellate Court’s affirmance of the trial court’s denial of setoff in the PaineWebber action.
      Moreover, PaineWebber contends, in both cases, that the Appellate Court’s failure to consider the merits of the two cases together was improper. We note that PaineWebber has not raised on appeal the Appellate Court’s denial of its motion to consolidate the cases. We, therefore, understand this contention as a claim that the Appellate Court, having properly denied PaineWebber’s motion to consolidate, was nonetheless required to consider the cases together.
      We reject such a claim. Even if the Appellate Court had considered the cases together, the Appellate Court would be entitled to reverse the trial court’s exercise of its equitable powers in each of the two separate cases only if that exercise was unreasonable. Fellows v. Martin, 217 Conn. 57, 67-68, 584 A.2d 458 (1991). The Appellate Court’s joint consideration of the cases could not alter the fact that the two cases were tried separately in the trial court. Accordingly, even if the Appellate Court had determined, after its joint consideration of the cases, that the two decisions of the trial court, taken together, created an inequity, it would not thereby have been entitled to reverse the trial court’s decisions, because the trial court properly considered the cases separately. Indeed, PaineWebber neither appealed from the trial court’s denial of its motion to consolidate nor raised in this court or in the Appellate Court the trial court’s failure to consider the cases together. PaineWebber’s claim that the Appellate Court should have considered the two cases together, therefore, fails.

       PaineWebber was the defendant on Winters’ counterclaims, which for the most part sounded in tort. See footnote 5.

       We have previously decided that, at the time a judgment is rendered in the trial court, it becomes final for the purpose of triggering a statute of limitations. Varley v. Varley, 181 Conn. 58, 60-61, 434 A.2d 312 (1980). Varley is not controlling here, however, because the twenty-four hour filing requirement of General Statutes § 52-141 (b) (4) is not properly considered a statute of limitations, despite that characterization of it by the Appellate Court. Paine Webber Jackson & Curtis, Inc. v. Winters, 26 Conn. App. 322, 325, 600 A.2d 1048 (1991).
      Black’s Law Dictionary defines “statute of limitations” as “[a] statute prescribing limitations to the right of action on certain described causes of action . . . that is, declaring that no suit shall be maintained . . . within a specified period of time after the right accrued . . . .” Black’s Law Dictionary (5th Ed.). The purposes of statutes of limitation include finality, repose and avoidance of stale claims and stale evidence. See Pintavalle v. Valkanos, 216 Conn. 412, 417, 581 A.2d 1050 (1990); Zapata v. Burns, 207 Conn. 496, 508-509, 542 A.2d 700 (1988).
      Unlike a statute of limitations, the pleading requirement imposed by § 52-141 (b) (4) does not limit the right to bring a suit and, because of its short length, cannot have been intended to promote repose and finality or to protect against stale claims and evidence.
      Finally, our decision not to characterize the twenty-four hour filing requirement as a statute of limitations is in accord with prior cases. For example, in Small v. South Norwalk Savings Bank, 205 Conn. 751, 758, 535 A.2d 1292 (1988), we impliedly recognized that a five day limitation on filing posttrial motions, imposed by Practice Book rule, is not a statute of limitations: “We no more feel at liberty to disregard [the five day limitation] . . . than we do to disregard an ordinary statute of limitations . . . . ” (Emphasis added; internal quotation marks omitted.) Similarly, in Cutting v. Yudkin, 137 Conn. 635, 637, 79 A.2d 823 (1951), we held that a statutory requirement that a bill of exceptions and writ of error be filed within forty-eight hours of judgment was not a statute of limitations.

       “[General Statutes] Sec. 52-263. appeals from superior court, exceptions. Upon the trial of all matters of fact in any cause or action in the superior court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court or of such judge, or from the decision of the court granting a motion to set aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in sections 8-8 and 8-9.”

       In Preisner v. Aetna Casualty & Surety Co., 203 Conn. 407, 412-13, 525 A.2d 83 (1987), we determined the effect of a trial court’s judgment on the contractual entitlement of an accommodation comaker of a promissory note to indemnification when that accommodation party settled with the holder of the note during the pendency of an appeal by the underlying obligor from the trial court’s judgment of liability. No statutory construction, therefore, was involved.

       Practice Book § 4009 provides in relevant part: “The party appealing shall, within twenty days, except where a different period is provided by statute, from the issuance of notice of the rendition of the judgment or decision from which the appeal is taken file an appeal in the manner prescribed by Sec. 4012.”

       Winters contends that, in Connecticut, the right to equitable setoff exists only in contract actions and that, for that reason, the trial court properly denied PaineWebber’s request to set off a debt judgment against a tort judgment. Because this contention falls outside the scope of the certified issues, we do not address it.

       We do not decide, however, the validity of the trial court’s suggestion that PaineWebber would not have been entitled to interest under General Statutes § 52-192a if the judgments had been set off by the trial court.

       Even if the Appellate Court’s decision in the foreclosure action were affirmed, that affirmance would not render moot the issues in the PaineWebber appeal, for the two cases, including the facially similar claims regarding the issue of equitable setoff in each case, involve independent controversies. We, therefore, answer the certified question raising the mootness issue in the negative. See footnote 10.

       Practice Book § 4061 provides in relevant part: “If the court deems it necessary to the proper disposition of the cause, it may remand the case for a further articulation of the basis of the trial court’s factual findings or decision.”

       Practice Book § 4051 provides in relevant part: “Any motion seeking . . . an articulation or further articulation of the decision of the trial court shall be determined by the judge of the trial court whence the appeal is taken or the reservation is made. The trial court may make such corrections or additions as are necessary for the proper presentation of the preliminary statement of issues or for the proper presentation of questions reserved . . . .”


source: Caselaw Access Project

author: Katz, J. Borden, J.,

license: Public Domain

text:
    Michael Ceci v. National Indemnity Company
    (14524)
    Peters, C. J., Borden, Berdon, Norcott and Katz, Js.
    Argued January 5
    decision released March 23, 1993

      Steven D. Jacobs, with whom, on the brief, were Richard L. Jacobs and Rachel M. DuFault, law student intern, for the appellant (plaintiff).

      John W. Lemega, with whom was Daniel P. Scapellati, for the appellee (defendant).
   Katz, J.

The principal issue in this appeal is whether, under the facts of this case, the plaintiff is entitled to underinsured motorist benefits, as a “family member” of the insured, pursuant to the business automobile insurance policy issued by the defendant to the plaintiffs corporate employer. The plaintiff, Michael Ceci, having sustained injuries as a pedestrian when he was struck by an underinsured motorist, sought to recover underinsured motorist benefits under a business automobile insurance policy issued by the defendant, National Indemnity Company, to Victor Ceci Refuse, Inc., a corporation operated by the plaintiff’s family. Following the trial court’s decision confirming an arbitration award rendered in favor of the defendant, the plaintiff appealed to the Appellate Court, which affirmed the judgment of the trial court and concluded that because the policy issued to his family’s corporation was unambiguous, the plaintiff was not covered by it. Ceci v. National Indemnity Co., 26 Conn. App. 661, 603 A.2d 412 (1992). We granted the plaintiff’s petition for certification to appeal and now reverse the judgment of the Appellate Court.

The Appellate Court opinion sets forth the following undisputed facts. “On September 13, 1986, the plaintiff was a pedestrian when he was struck by an underinsured motorist. He requested uninsured motorist benefits pursuant to a business automobile policy of insurance issued by the defendant to Victor Ceci Refuse, Inc. The policy was effective from July 15, 1986, through July 15,1987, and covered three pickup trucks and two trucks owned by the corporation. The policy identified Victor Ceci Refuse, Inc., as the ‘named insured’ and did not identify any individual officers or employees. The policy classified the insured’s business as a corporation.

“At issue in this case are the provisions of the insurance policy that dealt with uninsured motorist coverage. According to these provisions, the defendant would pay for damages caused by an uninsured vehicle. Individuals covered by this provision included: ‘(1) you or any family member (2) anyone else occupying a covered auto or a temporary substitute for covered auto.’ The policy defined ‘ “Family member” ’ as ‘a person related to you by blood, marriage or adoption who is a resident of your household, including a ward or foster child.’ The policy defined ‘occupying’ as ‘in, upon, getting in, on or off.’

“The plaintiff submitted his claim for uninsured motorist benefits to an arbitration panel. The arbitrators denied the plaintiff’s claim for coverage, finding that because the plaintiff was neither a family member of the named insured nor occupying any of the insured vehicles, he was not an insured under the policy. The plaintiff filed an application to vacate the arbitration award. The defendant asserted a counterclaim seeking to confirm the decision of the arbitration panel. The trial court rendered judgment in favor of the defendant by confirming the arbitration award. The plaintiff appealed that decision to [the Appellate Court].” Ceci v. National Indemnity Co., supra, 662-63.

The Appellate Court agreed with the defendant that “[b]ecause it is clear that the plaintiff could not be related to the corporation, there was no ambiguity that would entitle him to coverage based on the presumption favoring an insured where an insurance policy is ambiguous.” Id., 665. The Appellate Court accepted the defendant’s argument that a plain reading of the entire policy leads to the conclusion that a corporation could not have family members related by blood, marriage or adoption, and concluded that no reasonable interpretation of the family member provision would entitle the plaintiff to recover under this policy. Id., 665-66. We disagree.

The provisions of the policy issued by the defendant cannot be construed in a vacuum. Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 670, 591 A.2d 101 (1991). They should be construed from the perspective of a reasonable layperson in the position of the purchaser of the policy. Travelers Ins. Co. v. Kulla, 216 Conn. 390, 402, 579 A.2d 525 (1990); Allstate Ins. Co. v. Ferrante, 201 Conn. 478, 487, 518 A.2d 373 (1986); Cody v. Remington Electric Shavers, 179 Conn. 494, 497, 427 A.2d 810 (1980). This analysis is necessarily fact oriented and is not based solely upon general propositions. A determination of the meaning of the term “family member” in the context of the insurance policy requires careful consideration of the “ ‘situation [of the parties] to that policy and the circumstances connected with the transaction.’ ” Leonard Concrete Pipe Co. v. C. W. Blakeslee & Sons, Inc., 178 Conn. 594, 598, 424 A.2d 277 (1979), quoting Ives v. Willimantic, 121 Conn. 408, 411, 185 A. 427 (1936).

This policy was prepared for the defendant by underwriter Nancy Belliveau, who used only one underinsured motorist coverage endorsement in all automobile liability policies: the one appended to the Victor Ceci Refuse, Inc. policy. Belliveau had considerable information about the insured when she prepared the policy. Belliveau knew that Victor Ceci Refuse, Inc., was a small, family operated business, and that the plaintiff is the brother of Victor Ceci, the corporation’s sole shareholder. The plaintiff was an employee of the insured corporation and was listed as one of the three drivers on the schedule of drivers section of the application submitted to the defendant. The other drivers were family members Victor Ceci and Louis Ceci, who ran the business. Victor Ceci advised Belliveau that the drivers of the vehicles were not covered by the Workers’ Compensation Act because the business was owner operated. She knew that the five named vehicles were kept at 4 Seitz Lane, Cos Cob, which is where the business was located and where the plaintiff resided with Victor and Louis Ceci, another brother, a sister and their mother. Consequently, the policy endorsement had not been prepared in a vacuum. It is undisputed that Victor Ceci Refuse, Inc., was a small family owned and family operated business. It is with regard to these particular facts that we construe the policy.

The policy in effect at the time of the plaintiffs accident provided the following:

“PART I - WORDS AND PHRASES WITH SPECIAL MEANING - READ THEM CAREFULLY
“A. ‘You’ and ‘your’ mean the person or organization shown as the named insured in ITEM ONE of the declarations. . . .
“F. ‘Insured’ means any person or organization qualifying as an insured in the WHO IS INSURED section of the applicable insurance. Except with respect to our limit of liability, the insurance afforded applies separately to each insured who is seeking coverage or against whom a claim is made or suit is brought. . . .
“PART IV - LIABILITY INSURANCE. . . .
“D. WHO IS INSURED.
“1. You are an insured for any covered auto.
“2. Anyone else is an insured while using with your permission a covered auto you own, hire or borrow except . . . .”

The uninsured motorists insurance endorsement to the policy provided the following:

“THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
“UNINSURED MOTORISTS INSURANCE
“A. WORDS AND PHRASES WITH SPECIAL MEANING. . . .
“1. ‘Family member’ means a person related to you by blood, marriage or adoption who is a resident of your household, including a ward or foster child. . . .
“D. WHO IS INSURED
“1. You or any family member.
“2. Anyone else occupying a covered auto or a temporary substitute for a covered auto. The covered auto must be out of service because of its breakdown, repair, servicing, loss or destruction. ...” (Emphasis added.)

According to well established principles governing the construction of insurance polices, an ambiguous provision in an insurance policy will be construed to favor the insured. S & S Tobacco & Candy Co. v. Greater New York Mutual Ins. Co., 224 Conn. 313, 320, 617 A.2d 1388 (1992); Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 375, 593 A.2d 498 (1991); Schultz v. Hartford Fire Ins. Co., 213 Conn. 696, 702, 569 A.2d 1131 (1990); Beach v. Middlesex Mutual Assurance Co., 205 Conn. 246, 250, 532 A.2d 1297 (1987). The plaintiff contends that the term “family members” is ambiguous in the circumstances of this case because it is unclear what meaning should be attributed to the inclusion of a “family member” limitation in an uninsured motorists endorsement attached to a business policy issued to a corporation. Specifically, the plaintiff argues that the language in the endorsement reflects coverage to natural persons and their families, unlike the liability portion of the policy that involves only the named insured corporation.

The defendant, on the other hand, maintains that the language in the policy is clear and unambiguous because a corporation cannot have “family members.” Because it is a distinct legal entity, a corporation can act only through its agents. Lieberman v. Reliable Refuse Co., 212 Conn. 661, 673, 563 A.2d 1013 (1989). Even though the plaintiff is the brother of the corporation’s sole stockholder, he cannot be related to the corporation. The defendant contends, therefore, that the language concerning family members in a policy issued to a corporation is merely superfluous and does not serve to undermine the clarity of the policy.

Before we can construe the terms of the policy in the plaintiff’s favor as he suggests, we must first determine whether the policy provision is ambiguous. Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 583-84, 573 A.2d 699 (1990). The only question of interpretation in this case is whether “family member” was intended to define persons insured under the policy. The ultimate question of intent involves an analysis regarding the coverage that the insured expected to receive and the coverage that the insurance company expected to provide as set forth in the provisions of the policy. Id., 583.

“Under Connecticut law, the named insured refers only to the name actually appearing on the insurance policy. Testone v. Allstate Ins. Co., 165 Conn. 126, 129-30, 328 A.2d 686 (1973).” Ceci v. National Indemnity Co., supra, 663-64. According to the language of the policy in this case, only Victor Ceci Refuse, Inc., was the named insured and no others were designated insured individuals. “You” and “your” referred to the “named insured”; “insured” meant anyone qualifying as an insured in the “WHO IS INSURED” section. In the liability section, “WHO IS INSURED” referred solely to you or a person using a covered automobile with your permission. Accordingly, only persons injured while occupying a covered automobile would be considered insured with respect to liability insurance under the policy.

The endorsement adding uninsured motorist insurance specifically included terms not previously used, which the insurer cautioned had special meaning. The endorsement provided that “ ‘Family member’ means a person related to you . . and defined “WHO IS INSURED” as “D. ... 1. You or any family member”; and “D. . . . 2. Anyone else occupying a covered auto or a temporary substitute . . . .”

The parties agree that the plaintiff did not fall within section D.2. of the uninsured motorists endorsement because he was not occupying any vehicle at the time of the accident. Moreover, the plaintiff did not fall within that portion of section D.l. of that endorsement referring to “You” because he was not the named insured or a designated insured. Thus, the plaintiff could not recover underinsured benefits unless he was a “family member” of the corporation.

The defendant argues that the inclusion of family members in a business policy did not make the policy ambiguous. We disagree. An endorsement that specifically added coverage for “family members,” as did this one, would reasonably be understood as providing uninsured motorist insurance for members of the Ceci family independent of whether they were occupying a covered automobile at the time of injury. “It is a basic principle of insurance law that policy language will be construed as laymen would understand it and not according to the interpretation of sophisticated underwriters, and that ambiguities in contract documents are resolved against the party responsible for its drafting; the policyholder’s expectations should be protected as long as they are objectively reasonable from the layman’s point of view.” Cody v. Remington Electric Shavers, supra, 497.

The premise behind the rule is simple. “ ‘The party who actually does the writing of an instrument will presumably be guided by his own interests and goals in the transaction. He may choose shadings of expression, words more specific or more imprecise, according to the dictates of these interests.’ ” Simses v. North American Co. for Life & Health Ins., 175 Conn. 77, 85, 394 A.2d 710 (1978), quoting Ravitch v. Stollman Poultry Farms, Inc., 165 Conn. 135, 146 n.8, 328 A.2d 711 (1973). “A further, related rationale for the rule is that ‘[sjince one who speaks or writes, can by exactness of expression more easily prevent mistakes in meaning, than one with whom he is dealing, doubts arising from ambiguity are resolved in favor of the latter.’ ” Simses v. North American Co. for Life & Health Ins., supra, quoting 4 S. Williston, Contracts (3d Ed. Jaeger 1961) § 621, pp. 760-61.

The language relating to “family members” in a policy insuring a corporation was not required. The defendant could have omitted section D.l. of the uninsured motorists endorsement of this corporate auto policy. Without this section, there would have been no ambiguity. Additionally, the defendant could have alerted the insured to the lack of personal coverage under the policy so that the Ceci family could have pursued alternate avenues for coverage of family members who could be injured by an underinsured motorist other than while driving in one of the five corporate vehicles. For example, the insurance policy could have identified the corporate officers, Victor and Louis Ceci, or the sole stockholder, Victor Ceci, as a “designated insured.” This would have easily removed any ambiguity.

Because corporations do not have families, uninsured motorist endorsements containing family member language should not be appended to business automobile liability insurance policies. If they are, then, in keeping with the consumer oriented spirit of the rules of insurance policy construction, the claimed ambiguity should be construed from the standpoint of the reasonable layperson in the position of the insured and not according to the interpretation of trained underwriters. Cody v. Remington Electric Shavers, supra.

By inserting a family member provision in a business policy, the defendant has left the Cecis in the unenviable position of having to divine the meaning and purpose of the family member language in the context of the policy. This is precisely the problem that the rules of insurance policy construction were designed to avoid. See General Statutes §§ 38a-297 through 38a-299 (insurance coverage shall be “readily understandable”). The position proposed by the defendant and adopted by the Appellate Court, that only those persons covered by section D.2. of the endorsement are entitled to underinsured benefits, renders section D.l. of the endorsement meaningless. Although some jurisdictions, as cited by the defendant, are not troubled by an interpretation of an insurance policy that creates a nullity of some provisions, we have consistently stated that “ ‘[i]f it is reasonably possible to do so, every provision of an insurance policy must be given operative effect’ Kelly v. Figueiredo, 223 Conn. 31, 36, 610 A.2d 1296 (1992), quoting Streitweiser v. Middlesex Mutual Assur ance Co., supra, 376; “because parties ordinarily do not insert meaningless provisions in their agreements.” Connecticut Co. v. Division 125, 147 Conn. 608, 617, 164 A.2d 413 (1960); A. M. Larson Co. v. Lawlor Ins. Agency, Inc., 153 Conn. 618, 622, 220 A.2d 32 (1966).

The endorsement attached to the policy issued to Victor Ceci Refuse, Inc., is used by the defendant in all of its business policies. The defendant could have clarified or omitted the problematic language to provide notice to the Cecis of the precise nature of the coverage that was being purchased. It failed to do so, and instead highlighted these significant changes to the insured, thereby creating the ambiguity in the policy. “This is the kind of case that has been described as ‘one where no principle of law is involved, but only the meaning of careless and slovenly documents.’ ” Robinhorne Construction Corporation v. Snyder, 47 Ill. 2d 349, 358, 265 N.E.2d 670 (1970). Having caused the problem, the defendant cannot now ignore it.

The judgment is reversed and the case is remanded to the Appellate Court with direction to remand the case to the trial court with direction to render judgment (1) granting the plaintiff’s application to vacate the arbitration award, and (2) denying the defendant’s application to confirm the award.

In this opinion Peters, C. J., Berdon and Norcott, Js., concurred.

Borden, J.,

concurring. I view this case somewhat differently from and more narrowly than does the majority. In my view, this case involves the clash of two competing and, in the context of this case, inconsistent canons of construction of insurance policies: (1) unambiguous language must be given its plain meaning; and (2) a policy should not be interpreted so as to render any part of it superfluous.

It is difficult for me to conclude, even in this factual context, that the policy provision at issue is ambiguous. One simply cannot be a “family member” of a corporation. At the same time, construing the provision in accordance with its plain meaning clearly renders the “family member” clause superfluous.

Thus, if we follow canon (1) above, the defendant would prevail; if we follow canon (2), the plaintiff would prevail. In order to decide this case, therefore, we have to violate one of the two canons. Because the defendant is charged with having “drafted” the policy language in question, by virtue of the underwriter having appended the inapt endorsement, I would opt to follow canon (2) and violate canon (1). I therefore join in the judgment of the court.

       Uninsured and underinsured motorist coverage is governed by General Statutes § 38-175c, now recodified as General Statutes § 38a-336. “[Statutory provisions relating expressly to uninsured motorist coverage apply also to underinsured motorists.” American Motorists Ins. Co. v. Gould, 213 Conn. 625, 628, 569 A.2d 1105 (1990).

       Certification was granted limited to the following issue: “Did the Appellate Court properly determine that, under the facts of this case, the plaintiff was not entitled to uninsured motorist insurance benefits pursuant to the business auto policy issued by the defendant?” Ceci v. National Indemnity Co., 221 Conn. 927, 608 A.2d 689 (1992).

       Issues of uninsured motorist coverage are required to be arbitrated. Bodner v. United Services Automobile Assn., 222 Conn. 480, 488, 610 A.2d 1212 (1992). “In reviewing [such] compulsory arbitration cases, this court must conduct a de novo review of the arbitrators’ interpretation and application of the law.” Lumbermens Mutual Casualty Co. v. Huntley, 223 Conn. 22, 26, 610 A.2d 1292 (1992).

       Victor Ceci believed that his owner operated business was not eligible for workers’ compensation coverage. At the time of the plaintiffs accident, the relevant workers’ compensation provision stated: “(5) ‘Employee’ . . . shall not be construed to include . . . (c) a member of the employer’s family dwelling in his house; but, if in any contract of insurance the wages or salary of a member of the employer’s family dwelling in his house is included in the payroll on which the premium is based, then such person shall, in the event of his sustaining an injury arising out of and in the course of his employment, be deemed an employee and compensated accordingly. . . General Statutes (Rev. to 1985) § 31-275 (5) (C), now recodified and reorganized as General Statutes § 31-275 (9) (B) (iii). Because it is only Victor Ceci’s communication to Belliveau that is relevant to this analysis, we need not address the accuracy of his belief.

       The plaintiff also argues that it would be a violation of public policy for an insurer to collect a premium for coverage that is nonexistent. A separate uninsured motorist premium of $58 per vehicle had been paid by Victor Ceci Refuse, Inc. The uninsured motorist benefits, however, were provided through section D.2. of the policy endorsement; therefore, even were we to find the “family member” provision of section D.l a nullity, this interpretation would not render the coverage for each vehicle illusory.

       When construing an ambiguous provision of an insurance policy, we look to the expectations of the purchaser of the policy. Travelers Inc. Co. v. Kulla, 216 Conn. 390, 402, 579 A.2d 525 (1990). Indeed, had the Cecis been forced to provide an interpretation of “family members,” they had their two personal policies, issued by Royal Indemnity Company and Aetna Casualty and Surety Company, each of which contained the “family member” language, to consult.

       See, e.g., Hogan v. Mayor & Aldermen of Savannah, 171 Ga. App. 671, 320 S.E.2d 555 (1984); Polzin v. Phoenix of Hartford Ins. Cos., 5 Ill. App. 3d 84, 283 N.E.2d 324 (1972); Sears v. Wilson, 10 Kan. App. 2d 494, 704 P.2d 389 (1985).


author: Berdon, J.

text:
    John A. Pratt et al. v. Town of Old Saybrook et al.
    (14506)
    Peters, C. J., Callahan, Berdon, Norcott and Katz, Js.

      Argued December 4, 1992
    decision released March 23, 1993

      William F. Gallagher, with whom, on the brief, were Peter J. Bartinik and Cynthia C. Bott, for the appellants (plaintiffs).

      Andrew J. O’Keefe, with whom were Denise Rodosevich and, on the brief, Michael J. Walsh, for the appellee (named defendant).
   Berdon, J.

The principal issue raised in this appeal is whether the trial court correctly dismissed the named plaintiff’s claim for damages caused by a highway defect because the statutory notice to the town made reference to the wrong statute.

This action arises out of an automobile accident that occurred on January 6,1987, on a highway maintained by the defendant town of Old Saybrook. The plaintiff, John Pratt, alleged that his automobile “struck a large patch of ice extending across the southerly travel portion of the road causing the plaintiff to lose control of his vehicle, which crossed over the north bound lane, skidded off the road and collided with a tree . . . .” He also alleged that as a result of the accident he suffered serious injuries, including a brain injury that has rendered him quadriplegic. On March 24,1987, he furnished the town with written notice of the accident. Thereafter, the plaintiff instituted this action against the town and the other defendants.

The town moved to dismiss the count pertaining to it on the ground that the notice it had received was defective. The notice incorrectly stated that it was being given pursuant to General Statutes § 7-465, the municipal employee indemnification statute. It failed to make reference to the correct statute, General Statutes § 13a-149, the municipal highway defect statute. The trial court held that the plaintiff had failed to satisfy the notice requirement of § 13a-149, which is a condition precedent to recovery, and granted the motion to dismiss the action against the town. The plaintiff appealed to the Appellate Court. We transferred the matter to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

We recently held pursuant to the Tort Reform Act of 1986 “that an action under the highway defect statute, § 13a-149, is a plaintiff’s exclusive remedy against a municipality or other political subdivision ‘for damages resulting from injury to any person or property by means of a defective road or bridge.’ ” Sanzone v. Board of Police Commissioners, 219 Conn. 179, 192, 592 A.2d 912 (1991). Therefore, a town may not be held liable for damages caused by highway defects under § 7-465 (a), since this would allow a plaintiff to circumvent the requirements of § 13a-149 by suing a municipal employee and seeking indemnification from the town. Id.

Under § 13a-149, the plaintiff must provide statutory notice within ninety days of the accident in order for an action to lie for damages caused by a defective highway that the town must maintain. “[T]he notice which the statute prescribes comprehends five essential elements: (a) written notice of the injury; (b) a general description of that injury; (c) the cause; (d) the time [and date], and (e) the place thereof.” Marino v. East Haven, 120 Conn. 577, 579, 182 A. 225 (1935). In its motion to dismiss, the town failed to claim that the above five essential elements were not included in the notice. The town’s only claim is that the notice was insufficient as a matter of law to support an action under the highway defect statute because it incorrectly cited § 7-465 rather than § 13a-149. The trial court concluded that the incorrect citation was the equivalent of giving no notice to the town. If this were the case, the plaintiff would be barred from recovery. See Sanzone v. Board of Police Commissioners, supra, 198 (“[t]he plaintiff who fails within ninety days to provide the municipality with the statutorily required notice will be barred from any recovery”).

We disagree with the trial court’s conclusion that the notice required by § 13a-149 was not given simply because the plaintiff’s written notice made reference to a different statute.

First, there is no statutory requirement that the notice specify the statute relied upon to support the cause of action. Additionally, the town advances no practical reason why we should import such a requirement by judicial gloss. Furthermore, and more importantly, the town does not claim that it was misled or otherwise prejudiced by the plaintiffs mistake.

In determining whether the notice is sufficient, we must look to the purpose of the statute. Sizer v. Waterbury, 113 Conn. 145, 157-58, 154 A. 639 (1931); Bassin v. Stamford, 26 Conn. App. 534, 539, 602 A.2d 1044 (1992). The purpose of the notice requirement is not to set a trap for the unwary or to place an impediment in the way of an injured party who has an otherwise meritorious claim. Rather, the purpose of notice is to allow the municipality to make a proper investigation into the circumstances surrounding the claim in order to protect its financial interests. Wethersfield v. National Fire Ins. Co., 145 Conn. 368, 372, 143 A.2d 454 (1958). More specifically, as we recently stated in Sanzone v. Board of Police Commissioners, supra, 198, the “statutory notice assists a town in settling claims promptly in order to avoid the expenses of litigation and encourages prompt investigation of conditions that may endanger public safety, as well as giving the town an early start in assembling evidence for its defense against meritless claims.” We find that the notice given in this case served those purposes, notwithstanding the fact that it misstated the statutory section upon which the claim was predicated.

Finally, it is not without significance that the legislature provided a liberal saving clause in order to validate the content of a defective notice. Section 13a-149 provides that no notice “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.” Although it is limited in terms of the types of defects covered, this clause demonstrates that the legislature intended that compliance with the notice requirement be liberally construed in favor of the plaintiff. See Isaac v. Mount Sinai Hospital, 210 Conn. 721, 728, 557 A.2d 116 (1989) (citing Johnson v. Sikes, 56 Conn. 589, 596 [1888], in recognition that “a very liberal construction is given to saving statute”); Builders Service Corporation v. Planning & Zoning Commission, 208 Conn. 267, 276, 545 A.2d 530 (1988) (a court should consider a statute as a whole, reconciling its separate provisions so that a reasonable overall interpretation is achieved).

The legislature’s intention that § 13a-149 should be liberally construed is made even clearer when this statute is compared with General Statutes § 13a-144, the state highway liability statute. The latter statute requires the same content for statutory notice as the municipal highway liability statute—a description of the injury, the cause, and the time and place—but it does not provide a saving clause. This court recently held in Bresnan v. Frankel, 224 Conn. 23, 26 n.3, 615 A.2d 1040 (1992), that the state highway notice requirement must be strictly construed since § 13a-144, unlike § 13a-149, does not contain a saving clause. A necessary corollary to this is that the municipal highway notice requirement should be liberally construed since it, unlike § 13a-144, does contain a saving clause.

The town also argues that the notice was legally insufficient because the plaintiff’s original complaint sought damages based upon nuisance as well as negligence against the town. Since § 13a-149 provides an exclusive remedy, the town argues, the inclusion of a nuisance claim strengthens the conclusion that the plaintiff was proceeding under § 7-465 rather than § 13a-149.

The town cites no authority to support the claim that the plaintiffs allegation of nuisance somehow carved into stone the nature of the notice. The fact remains that every essential element of the notice required under § 13a-149 was furnished to the town, and that only some of those elements are required in an action for indemnification under § 7-465. We refuse to invalidate the plaintiff’s notice as a matter of law merely because the plaintiffs complaint sought damages pursuant to the alternative theory of nuisance. See Dreier v. UpJohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985) (“[ujnder our pleading practice, a plaintiff is permitted to advance alternative or even inconsistent theories of liability against one or more defendants in a single complaint”).

The trial court also dismissed the complaint because the plaintiff failed to allege both that the town “has a., statutory duty to maintain the roads in Old Saybrook,” and that he “sent statutorily required notice under” § 13a-149. (Emphasis in original.) The town has not, however, pursued either of these reasons to sustain the trial court’s dismissal of the action against it, so we will not consider them. We note in passing that a motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action. That should be done, instead, by a motion to strike; see Baskin’s Appeal from Probate, 194 Conn. 635, 640, 484 A.2d 934 (1984); the practical difference being that if a motion to strike is granted, the party whose pleading is stricken is given an opportunity to replead in order to avoid a harsh result. Id.; see also Practice Book § 157.

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

In this opinion the other justices concurred.

       Because of our disposition of this appeal, we need not address the named plaintiffs additional claim that the trial court erred in failing to follow the law of the case.

       Suzanne Wilson, the mother of John Pratt, was joined as a plaintiff in the action seeking damages against the town in a separate count. That count was stricken by the trial court and is not at issue before this court. References to the plaintiff are to the named plaintiff, John Pratt.

       The plaintiff also sought damages against the defendants Willi J. Benoit and Toni Benoit, who were in possession and control of property adjoining the public highway at the time of the plaintiff’s accident. The third count of the complaint alleged that these defendants developed their property in such a way as to divert the flow of water from their property onto the highway, thereby creating a nuisance that resulted in the injury to the plaintiff. The fourth count alleged negligence against these defendants for diverting the water and creating a dangerous condition on the highway. In the fifth count, the plaintiff’s mother alleged nuisance and negligence against these defendants and sought recovery of past and future medical expenses.

       General Statutes § 7-465 makes municipalities liable for certain damages caused by their employees to third parties in the course of their duties as employees.

       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 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 .... 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.”

       Public Acts 1986, No. 86-338.

       The notice provided by the plaintiff was dated March 20,1987, and was signed by the plaintiffs attorney. It provided as follows:

        “NOTICE OF INJURY TO TOWN CLERK OF OLD SAYBROOK
      NOTICE TO:
      Town Clerk
      Town of Old Saybrook
      Old Saybrook Town Hall
      Old Saybrook, CT 06475
      Pursuant to Section 7-465 of the Connecticut General Statutes, notice is hereby given of injuries sustained due to the negligence of the municipality of the Town of Old Saybrook and its employees, the particulars of which are as follows:
      PERSON INJURED:
      JOHN PRATT
      DATE OF INJURY:
      1/6/87
      TIME OF INJURY:
      9:37 p.m.
      PLACE OF INJURY:
      Ingham Hill Road, North of Mill Rock Road
      West, Old Saybrook, CT
      CAUSE OF INJURY:
      Plaintiffs automobile slid on stretch of ice covered road, lost control and smashed into a tree
      DESCRIPTION OF INJURY:
      Punctured lung, left dislocated hip, pulmonary contusion, cardiac contusion, bleeding into the brain
      JOHN PRATT will look to the Town of Old Saybrook for damages as provided by law. If there is any information desired by the Town of Old Saybrook in reference to this claim, please contact the undersigned.
      JOHN PRATT”

       In the first count of the original complaint, the plaintiffs John Pratt and his mother sought damages against the town based upon nuisance. In the second count, these plaintiffs sought damages against the town based upon negligence. In response to a request to revise filed by the town, the complaint was amended. In counts one and two of the revised complaint, John Pratt sued the town for nuisance and negligence, respectively. In count three, his mother sued the town for nuisance and negligence. The plaintiffs further amended their complaint on their own motion. The amended revised complaint omitted any allegations of nuisance against the town.

       To the same end, the town points to the fact that the named plaintiff’s mother attempted to recover damages against it, while General Statutes § 13a-149 authorizes recovery only by the injured party.

       General Statutes § 7-465 provides in relevant part: “No action for personal physical injuries or damages to real or personal property shall be maintained against such municipality and employee jointly unless such action is commenced within two years after the cause of action therefor arose nor unless written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the clerk of such municipality within six months after such cause of action has accrued.”