text:
    PACIFIC INDEMNITY INSURANCE COMPANY v. AETNA CASUALTY AND SURETY COMPANY
    (15484)
    Callahan, C. J., and Borden, Berdon, Katz and Palmer, Js.
    Argued December 11, 1996
    officially released February 11, 1997

      Peter J. Ponziani, with whom was Christopher Coxon, for the appellant (plaintiff).

      David Tilles, for the appellee (defendant).
   Opinion

BERDON, J.

The sole issue raised in this appeal is whether, under the circumstances of this case, the boarding of horses constitutes a “business pursuit” excluded from the coverage of a homeowner’s insurance policy. The plaintiff, Pacific Indemnity Insurance Company (Pacific), appeals from a judgment of the trial court in which the court concluded that the boarding of horses by Pacific’s insureds constituted a business pursuit as defined in an exclusion to the homeowner’s insurance policy issued by the defendant, Aetna Casualty and Surety Company (Aetna). We affirm the judgment of the trial court.

The following undisputed facts are relevant to this appeal. In 1985, Carol and Charles Popp, Pacific’s insureds, began boarding horses at their farm, which is known as Hidden Bridge Farm. Aetna’s insureds, Susan and Harold Dale, boarded their horse at Hidden Bridge Farm, paying $480 per month. The Popps hired Karen Deutsch as an independent contractor to care for the horses boarded at the farm, including the Dales’ horse. In December, 1989, Deutsch was injured when she was kicked by the Dales’ horse. At the time that Deutsch was injured, the Popps were insured by Pacific. Thereafter, Deutsch brought an action against the Popps seeking damages for her injuries. Pacific and the Popps subsequently made a demand on Aetna to defend the Popps and to provide coverage because the homeowner’s insurance policy issued to the Dales by Aetna included, as an additional insured, “any person or organization legally responsible for” their horse. Aetna refused to defend them or to provide coverage, claiming that the Popps were engaged in a business pursuit within the meaning of an exclusion in its policy. Specifically, the exclusion provided: “A person or organization using or having custody of these animals ... in the course of any business, or without permission of the owner is not an insured . . . .”

At the time of the accident, the Popps were both employed full-time in pursuits other than the boarding of horses at Hidden Bridge Farm. The Popps began to board horses at the farm in an attempt to defray the expenses of Carol Popp’s own riding activities. The number of horses that they boarded ranged at various times from three to six. In addition to boarding horses, the Popps offered training and riding lessons. During the period from 1987 to 1990, the Popps reported profits and claimed losses from their horse-related activities as a farm business on their federal income tax returns. The Popps did not report their farm income under 26 U.S.C. § 183, the so-called “hobby rules,” which pertain to activities “not engaged in for profit.” The “hobby rules” preclude taxpayers from using hobby expenditures that exceed income as deductions to offset income from taxpayers’ business activities. See 26 U.S.C. § 183 (a) (1994). Indeed, the Popps deducted expenses from their gross income that included depreciation from a portion of their farm property, pursuant to 26 U.S.C. § 167 (a), which provides for the allowance of deprecia-lion deductions on business property only.

Pacific then brought this action seeking a declaratory judgment that Aetna is required to indemnify and defend the Popps in the action brought by Deutsch. The parties subsequently filed cross motions for summary judgment. The trial court granted Aetna’s motion for summary judgment, concluding that the Popps’ boarding of horses constituted a business pursuit that was excluded from coverage under the Aetna policy. Pacific appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

On appeal, Pacific argues that the trial court incorrectly interpreted the majority rule with respect to the definition of a business pursuit. Specifically, Pacific contends that the trial court improperly concluded that the Popps were boarding horses with a profit motive when, in fact, it was not their means of earning a livelihood. In response, Aetna argues that a business pursuit need not constitute the insured’s sole or principal source of income, but, rather, that a business pursuit denotes any continuous activity that an insured carries out for the purpose of earning a profit. We agree with Aetna.

We begin our analysis with the general principles governing the construction of insurance policies. “An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract and enforced in accordance with the real intent of the parties as expressed in the language employed in the policy. . . . The policy words must be accorded their natural and ordinary meaning. . . . Under well established rules of construction, any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy. . . . This rule of construction may not be applied, however, unless the policy terms are indeed ambiguous. . . . Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous. . . . [Construction of a contract of insurance presents a question of law for the court which this court reviews de novo.” (Citations omitted; internal quotation marks omitted.) Hansen v. Ohio Casualty Ins. Co., 239 Conn. 537, 542-43, 687 A.2d 1262 (1996).

The threshold question in our inquiry is the meaning of the term “business pursuits.” Although this court has not previously addressed the construction of insurance policies with respect to the definition of business pursuits, we find guidance in the decisions of other jurisdictions. The seminal case in this regard is Home Ins. Co. v. Aurigemma, 45 Misc. 2d 875, 879, 257 N.Y.S.2d 980 (1965), in which the New York Supreme Court concluded that the term business pursuits encompassed two elements, continuity and profit motive. “As to the first, there must be a ‘customary engagement’ or a ‘stated occupation’; as to the latter, there must be shown to be such activity as a ‘means of livelihood’; ‘gainful employment’; ‘means of earning a living’; ‘procuring subsistence or profit’; ‘commercial transactions or engagements. ’ ” Id. In a subsequent New York Appellate Court decision, Shapiro v. Glens Falls Ins. Co., 47 App. Div. 2d 856, 365 N.Y.S.2d 892 (1975), aff'd, 39 N.Y.2d 204, 347 N.E.2d 624, 383 N.Y.S.2d 263 (1976), the court clarified that “for purposes of the ‘business pursuits’ exclusion, the ‘business’ engaged in by [the insured] need not necessarily be limited to his sole occupation or employment (Citation omitted; emphasis in original.)

The majority of jurisdictions that have considered this issue have followed Aurigemma, holding that the term business pursuits means a continued or regular activity that is conducted for the purpose of profit, such as a trade, profession or occupation. See, e.g., Pullen v. Cincinnati Ins. Co., 400 So. 2d 393, 402 (Ala. 1981); Industrial Indemnity Co. v. Goettl, 138 Ariz. 315, 318-19, 674 P.2d 869 (App. 1983); Saha v. Aetna Casualty & Surety Co., 427 So. 2d 316, 318 (Fla. App. 1983); Heggen v. Mountain West Farm Bureau Mutual Ins. Co., 220 Mont. 398, 401-402, 715 P.2d 1060 (1986); Fadden v. Cambridge Mutual Fire Ins. Co., 51 Misc. 2d 858, 862, 274 N.Y.S.2d 235 (1966), aff'd, 27 App. Div. 2d 487, 280 N.Y.S.2d 209 (1967); see annot., 48 A.L.R.3d 1096, 1099 (1973) (“courts have generally taken the restrictive view that this phrase denotes a continuous or regular activity for the purpose of earning a livelihood, such as a trade, profession, or occupation, or a commercial enterprise”).

We conclude that the majority interpretation of the term business pursuits for the purposes of an exclusionary clause in a homeowner’s insurance policy is consistent with the terms of the Aetna policy in this case. The definition of “business” in the Aetna policy “includes trade, profession or occupation.” (Emphasis added.) See footnote 2. It is well settled that in construing insurance policies, “words must be accorded their natural and ordinary meaning.” (Internal quotation marks omitted.) Hansen v. Ohio Casualty Ins. Co., supra, 239 Conn. 542. Because the word “includes” is a term of expansion, “business includes, but is not limited to, the ‘trade, profession or occupation’ of the insured.” Gaynor v. Williams, 366 So. 2d 1243, 1244 (Fla. App. 1979). Consequently, we find the approach adopted by the New York courts and the majority jurisdictions to be accurate and to reflect the ordinary meaning of business pursuits.

Pacific, in its brief, also argues that the majority view defines “business pursuit” only to include an activity that “is predominantly engaged in as a means of livelihood, and that at the very least it is one’s principal occupation, not a secondary activity engaged in during one’s leisure time.” (Emphasis in original.) We disagree with such a narrow interpretation. Several courts have rejected the argument that part-time or supplemental income activities do not constitute business pursuits. See Automobile Underwriters, Inc. v. Hitch, 169 Ind. App. 453, 457-58, 349 N.E.2d 271 (1976); Krings v. Safeco Ins. Co. of America, 6 Kan. App. 2d 391, 394-95, 628 P.2d 1071 (1981); Wiley v. Travelers Ins. Co., 534 P.2d 1293, 1295 (Okla. 1974). Moreover, use of the plural term “business pursuits” in the Aetna policy, as opposed to the singular term “business pursuit,” undermines the inference that only the insured’s sole or principal occupation or trade is excluded under the policy. Krings v. Safeco Ins. Co. of America, supra, 395 n.1.

Pacific further argues in its brief that under the trial court’s rationale, “any activity where profit is a motive constitutes a business, regardless of whether the facts of the case show that the activity is not engaged in for the purpose of earning a livelihood.” (Emphasis in original.) Pacific, therefore, contends that the trial court effectively adopted the minority rule. Again, we are unpersuaded. Pacific ignores the first element of the majority approach — continuity of the activity. Indeed, other jurisdictions have noted that “[n]ot every activity undertaken for profit is necessarily a business pursuit . . . .” O’Conner v. Safeco Ins. Co. of North America, 352 So. 2d 1244, 1246 (Fla. App. 1977); Camden Fire Ins. Assn. v. Johnson, 170 W. Va. 313, 315, 294 S.E.2d 116 (1982). Further, as this court has pointed out in the context of unemployment compensation, a business activity must be undertaken “not as an isolated instance but as a regular or continuous practice . . . .” Maltatuck Museum-Maltatuck Historical Society v. Administrator, Unemployment Compensation Act, 238 Conn. 273, 280, 679 A.2d 347 (1996).

We conclude that the term “business pursuits,” for the purposes of the exclusionary clause in the Aetna policy, contemplates a continuous or regular activity engaged in by the insured for the purpose of earning a profit or a livelihood. The determination of whether a particular activity constitutes a business pursuit is to be made by a flexible fact-specific inquiry. Asbury v. Indiana Union Mutual Ins. Co., 441 N.E.2d 232, 239 (Ind. App. 1982); 7A J. Appleman & J. Appleman, Insurance Law and Practice (1979) § 4501.10, p. 273.

With these principles in mind, we turn to the undisputed facts of this case. As Pacific points out in its brief, “[tjhere is no question in this case that the Popps’ activities involving the Hidden Bridge Farm were ‘continuous.’ ” Our inquiry, therefore, focuses on whether the second element — profit motive — has been satisfied.

Although the Popps did not board horses as then-sole means of livelihood, they nevertheless conducted the activity for the purpose of earning a profit. It is of no moment that, during two of the years in question, 1988 and 1990, the Popps incurred net losses from this activity. As the Supreme Court of Oklahoma pointed out in Wiley v. Travelers Ins. Co., supra, 534 P.2d 1295: “In a business pursuit the profit motive, or purpose of profit, is important. Whether there is or is not actual profit is immaterial. Does apursuithave to be successful from a profit standpoint before it is a business pursuit? If a business suffers a loss, was it not a business? The answers are obvious. Profit motive, not actual profit, makes a pursuit a business pursuit.” Furthermore, by boarding horses at a fee of $480 per month per horse, Carol Popp was able to offset expenses for her own riding activities. Our conclusion that the boarding of horses in this case constitutes a business pursuit is further bolstered by the fact that, for every year in question, the Popps filed farm business federal income tax returns and claimed substantial annual depreciation of their property under Internal Revenue Code provisions that relate only to businesses. See Saha v. Aetna Casualty & Surety Co., supra, 427 So. 2d 318 (concluding absence of profit does not negate existence of business pursuit where insured claimed substantial expenses and depreciation); Heggen v. Mountain West Farm Bureau Mutual Ins. Co., supra, 220 Mont. 402 (finding deduction of expenses showed profit motive notwithstanding lack of actual profit). Accordingly, we conclude that, the trial court was correct in its determination that under the facts of this case, the boarding of horses constituted a business pursuit excluded from coverage under the Aetna policy.

The judgment is affirmed.

In this opinion the other justices concurred.

       Pacific claims that Aetna was the primary insurer, and that Pacific’s liability under the policy issued to the Popps was secondary.

       The Aetna policy also provided a similar exclusion for medical payments as follows: “Medical Payments to Others do not apply to bodily ipjruy or property damage . . . arising out of business pursuits of any insured . . . .” The policy’s definition of business “includes trade, profession or occupation.”

       Specifically, the Popps reported gross and net income during those years as follows, with the figures in parentheses indicating a loss:
      1987 —gross: $43,241; net: $667
      1988 —gross: 55,188; net: (15,914)
      1989 — gross: 52,889; net: 951
      1990 —gross: 51,213; net: (15,442)

       Title 26 of the United States Code, § 167 (a) (1994), provides: "There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence)—

        "(1) of property used in the trade or business, or
      “(2) of property held for the production of income.”

       The Popps claimed the following amounts as depreciation deductions: in 1987 - $10,142; in 1988 - $16,651; in 1989 - $13,525; and in 1990 - $10,000

       A minority of courts have held that the term business pursuits should be interpreted as embracing all activities that a person undertakes in which profit is a motive. See Salerno v. Western Casualty & Surety Co., 336 F.2d 14, 19 (8th Cir. 1964); Last v. West American Ins. Co., 139 N.J. Super. 456, 462, 354 A.2d 364 (1976). We reject that all-inclusive definition.

       See footnote 6.

       We emphasize that this ease-by-case analysis and an interpretation of policy language consistent, with the insured’s reasonable expectations may, in some instances, result in coverage for an insured’s activity. “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.” (Internal quotation marks omitted.) O’Brien v. United States Fidelity & Guaranty Co., 235 Conn. 837, 843, 669 A.2d 1221 (1996).


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    RICHARD E. STEIN v. DONNA E. HILLEBRAND ET AL.
    (15538)
    Callahan, C. X, and Berdon, Norcott, Palmer and Peters, Js.
    Argued December 3, 1996
    officially released February 18, 1997

      Joy Kony Peshkin, for the appellant (plaintiff)-

      Matthew B. Woods, for the appellee (named defendant).
   Opinion

PETERS, J.

The principal issue in this appeal is the extent of the statutory authority of a trial court, in a dissolution of marriage action, to order the execution of a mortgage on real property as security for future alimony and child support payments. In an action for a declaratory judgment to quiet title against the named defendant, Donna E. HiUebrand, the plaintiff, Richard E. Stein, sought judicial invalidation of a mortgage on a one-half interest in a parcel of real property that he and his brother, David Stein, had owned as tenants in common. The trial court rendered judgment in favor of the defendant. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The trial court, Tobin, J., found the following facts, which are largely undisputed. In December, 1982, the defendant was granted a decree of dissolution of marriage from David Stein, her husband. As part of the dissolution award, the dissolution court, Ryan, J., ordered David Stein to pay the defendant $1400 per month as unallocated alimony and support until March, 1998, at which time these monetary obligations would be reviewed. Exercising the authority conferred by General Statutes § § 46b-82 and 46b-84, the dissolution court further ordered David Stein, as security for his obligations, to mortgage to the defendant his one-half interest in certain real property located in Westport that he then owned as a tenant in common with the plaintiff. The plaintiff was present as a courtroom observer on December 1, 1982, when Judge Ryan orally issued this order. Judge Tobin expressly found: “[Judge Ryan], in open court, asked Richard [Stein] if he consented to the mortgage being placed on the Westport property and he responded affirmatively.”

In accordance with Judge Ryan’s order, David Stein executed, in favor of the defendant, a mortgage deed that was promptly recorded in the Westport land records. The deed explicitly referenced the case number of the dissolution decree and the court where it could be located. The deed further authorized the defendant to foreclose on the mortgage in the event of a default in David Stein’s alimony and support payments. In June, 1987, David Stein quitclaimed his one-half interest in the Westport property to the plaintiff for its fair market value.

The plaintiff subsequently filed the present action, seeking to invalidate the defendant’s mortgage on two principal grounds. He alleged that the dissolution court had no authority to order the execution of any mortgage because the postjudgment procedure statutes; General Statutes, c. 906; do not authorize the use of a mortgage to secure future alimony and support payments. In the alternative, he also argued that the particular mortgage ordered by the dissolution court in this case was unenforceable because its terms are too indefinite. The trial court, Tobin, J., rejected both claims. It concluded that the postjudgment remedies statutes do not govern court-ordered security for alimony and support, and it construed existing case law to validate a mortgage deed, such as the one here at issue, that affords a title searcher adequate information to discover the terms of the underlying obligation. See Connecticut National Bank v. Esposito, 210 Conn. 221, 228, 554 A.2d 735 (1989). Accordingly, the trial court rendered judgment for the defendant.

On appeal, the plaintiff has elaborated on the arguments presented at trial. He first claims that the defendant’s mortgage was invalid, ab initio, because: (1) § 46b-82 does not authorize a dissolution court to secure future alimony payments through the use of a mortgage; or, alternatively, (2) the postjudgment lien statutes preclude the exercise of any such authority under § 46b-82. He also claims that, even if the dissolution court had the authority to order the execution of a mortgage, the terms of the mortgage in this case are too uncertain to be enforceable, because the mortgage does not state either the amount of the indebtedness or the final due date thereof. Finally, he claims that the trial court improperly found that he had consented to the encumbrance of the Westport property. We are unpersuaded by these arguments and, accordingly, affirm the judgment of the trial court.

I

We begin our review of the plaintiffs claims by considering his two attacks on the authority of a dissolution court to order one former spouse to execute a mortgage to secure an alimony and support obligation to the other former spouse. These jurisdictional challenges put into question the extent to which § 46b~82 authorizes an order for such security and the extent to which chapter 906 precludes such an order. We read these statutes to support the action of the dissolution court in this case.

A

The plaintiffs first argument is that § 46b-82 does not authorize a dissolution court to order a real property mortgage as security for future alimony payments. As a matter of statutory construction, the plaintiff advances the view that the legislature did not intend to permit dissolution judgments “to facilitate a lifetime encumbrance on real estate.” We disagree with this restrictive interpretation of § 46b-82.

In accordance with established principles of statutory construction, our paramount objective is “to ascertain and give effect to the apparent intent of the legislature.” (Internal quotation marks omitted.) Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 390, 618 A.2d 1340 (1993). If the words of a statute are unambiguous, we assume that they express the legislature’s intent. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987). In the event of textual ambiguity, we discern such intent by also looking to legislative history, legislative policy and the relationship of the statute at issue to existing legislation. See State v. McVeigh, 224 Conn. 593, 607, 620 A.2d 133 (1993).

Section 46b-82 provides that “the superior court may order either of the parties [to a marriage dissolution action] to pay alimony to the other .... The order may direct that security be given therefor on such terms as the court may deem desirable . . . .” This statute was enacted in 1973 as part of a comprehensive modernization of divorce laws in this state. Public Acts 1973, No. 73-373; see 16 H.R. Proc., Pt. 5, 1973 Sess., pp. 1929-30, remarks of Representative John N. DeMerell. The predecessor to § 46b-82 did not contain a similar security provision. See General Statutes (1958 Rev.) § 46-21.

In our view, the plain language of § 46b-82 evinces the legislature’s intent to include real property within the scope of property interests that may serve as security for the payment of alimony. Nothing in the text of the statute supports a more limited definition of the word “security.” Had the legislature meant this term to exclude real property, it easily could have so provided. We will not impute to the legislature an intent to limit this term where such intent does not otherwise appear in the language of the statute. Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 195, 663 A.2d 1001 (1995); see also Dos Santos v. F.D. Rich Construction Co., 233 Conn. 14, 20, 658 A.2d 83 (1995) (reviewing courts are confined to language actually used in statute). Moreover, the statutory language authorizing security “on such terms as the court may deem desirable” underlines the legislature’s intent to confer “broad judicial discretion” on a dissolution court to frame a remedial order that takes account of all the resources available to the parties. Holley v. Holley, 194 Conn. 25, 34, 478 A.2d 1000 (1984) (recognizing broad judicial discretion under § 46b-82). This statutory language is, on its face, inconsistent with a legislative intent to limit the forms of property to which a court; may look as security for the obligations it imposes.

If we were to venture beyond the words of the statute, nothing in the history of the divorce reform legislation indicates that the legislature intended a more limited reading of the security provisions in § 46b-82. “Although we have on occasion relied in part on legislative history to narrow what might otherwise be regarded as broad statutory language . . . the legislative history is not compelling enough to persuade us to do so in the present case.” (Citation omitted.) Stratford v. State Board of Mediation & Arbitration, 239 Conn. 32, 42-43, 681 A.2d 281 (1996). In fact, the legislative history reveals that these provisions were adopted in response to concerns that former spouses were frequently avoiding their alimony and support obligations. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1973 Sess., pp. 233-37, remarks of Barbara Lifton. To interpret the security language in § 46b-82 to exclude real property would, therefore, defeat the remedial purpose of this legislation by removing a stationary, valuable, and ascertainable form of property from the class of available security. This we decline to do.

We conclude, accordingly, that the dissolution court had the authority under § 46b-82 to order David Stein to execute a real property mortgage in favor of the defendant as security for his alimony obligations. See Devlin v. Wiener, 232 Conn. 550, 557, 656 A.2d 664 (1995) (mortgage can secure performance as well as payment on debt).

B

The plaintiff next claims that the trial court’s authority to order a mortgage as security for family obligations is limited by the statutes pertaining to postjudgment procedures. See General Statutes c. 906, §§ 52-350a through 52-400f. He claims that the determination of an arrearage of alimony and support “can only occur postjudgment” and he infers therefrom that collection of an arrearage must be governed by the postjudgment procedures specified in chapter 906. Chapter 906 permits the execution and foreclosure of a lien against a judgment debtor’s property only in the event ajudgment creditor obtains an unsatisfied “money judgment.” See General Statutes § 52-350a (15). Section 52-350a (13), which defines “money judgment,” excludes from this definition a “family support judgment.” Section 52-350a (7), in turn, defines “family support judgment” to include “a judgment, order or decree of the superior court for payment of a legal obligation for support or alimony to a spouse . . . .” The plaintiff contends that, because these statutes do not allow a party to obtain a postjudgment lien to secure alimony or support payments, the dissolution court violated chapter 906 by ordering David Stein to mortgage his property to secure these payments. We are unpersuaded.

In construing these statutes, in addition to the principles referred to above; see part I A; Vaillancourt v. New Britain Machine/Litton, supra, 224 Conn. 390-91; we rely on the proposition that “[t]he legislature is presumed to be aware and to have knowledge of all existing statutes and the effect which its own action or nonaction may have on them.” Windham First Taxing District v. Windham, 208 Conn. 543, 554, 546 A.2d 226 (1988). “Where, as here, more than one statute is involved, we [also] presume that the legislature intended them to be read together to create a harmonious body of law . . . .” Berger v. Tonken, 192 Conn. 581, 589, 473 A.2d 782 (1984).

The plaintiffs argument mistakenly assumes that the defendant’s rights under her mortgage are governed by the postjudgment procedure statutes. Section 52-350a (15) specifies, in relevant part, that a “postjudgment procedure” involves “a placing of a lien on property [or] a modification or discharge of a lien . . . .” (Emphasis added.) Neither that section nor any other section in chapter 906 indicates that the postjudgment procedures serve to limit the creation or the enforcement of a prejudgment mortgage. Chapter 906, therefore, does not address a dissolution court’s authority to order a mortgage to secure alimony and support obligations or a trial court’s authority to conduct a mortgage foreclosure proceeding in satisfaction of those obligations. We presume that the legislature uses the terms “mortgage” and “lien” to connote their different legal meanings. See, e.g., General Statutes c. 846 (mortgages) and General Statutes c. 847 (liens).

Chapter 906, moreover, applies only in the context of postjudgment procedures. In contrast, the order directing David Stein to mortgage his property as security for future obligations occurred prior to any judgment of amounts owing. The plaintiff claims that, for the defendant to “levy” on the Westport property, the trial court will eventually have to reduce the amount of any arrearage to a “money judgment,” which would then bring “this matter squarely within the ambit” of the exclusions in chapter 906. Again, the plaintiff fails to recognize that, in the event David Stein fails to satisfy his obligations, the defendant, as the mortgagee of the Westport property, would not have to obtain a “money judgment” but could instead immediately institute/o?-e-closure proceedings on the property. These foreclosure proceedings would not take place “postjudgment” as that term is used in chapter 906.

We conclude, accordingly, that the provisions of chapter 906 relating to postjudgment procedures are not applicable to this case and, therefore, did not serve to limit the authority of the dissolution court to order David Stein to mortgage the Westport property as security for alimony and support obligations.

II

The plaintiffs second claim is that, even if the mortgage was valid as between David Stein and the defendant, it is not valid as to a third party purchaser of the mortgaged property like himself. He contends, as a matter of law, that the terms of the mortgage deed are too indefinite to be enforceable. He further contends, as a matter of fact, that the trial court improperly found that he had consented to be bound by the mortgage. We disagree with both contentions.

A

In his argument regarding the impermissible vagueness of the mortgage deed executed by David Stein, the plaintiff reminds us that the underlying debt secured by the mortgage ultimately depends upon both David Stein’s ability to meet his alimony and support obligations and the trial court’s future willingness or unwillingness to modify those obligations. In light of these uncertainties, he contends that no degree of “[p]rudence and diligence” would have enabled him to determine the maximum amount or maximum duration of the underlying debt. Such a mortgage, he claims, must be invalid. We are unpersuaded. We conclude that the plaintiff, having knowingly acquiesced to the terms of the mortgage, is not merely a third party to that mortgage. As a result, he is bound by its terms, regardless of their alleged vagueness.

Under our common law, a valid mortgage deed must provide “ ‘reasonable notice’ to third parlies of the obligation that is secured.” (Emphasis added.) Connecticut National Bank v. Esposito, supra, 210 Conn. 227. We have defined “reasonable notice” as “notice of the nature and amount of the encumbrance which the mortgagor intends to place upon the land.” (Internal quotation marks omitted.) Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 579, 522 A.2d 763 (1987). “The purpose of such ‘reasonable notice’ is to prevent parties that are not privy to the transaction from being defrauded or misled.” (Emphasis added.) Connecticut National Bank v. Esposito, supra, 227.

The plaintiff contends that the mortgage deed in this case could never provide a third party with reasonable notice of the debt obligation because that obligation, as referenced in the mortgage deed, remains uncertain until a court reduces David Stein’s arrearages to a fixed sum. This argument is unavailing to the plaintiff because he is not a stranger to the mortgage. The trial court, Tobin, J., found that the plaintiff was present in court on the day Judge Ryan orally rendered his dissolution decree and that Judge Ryan explicitly asked the plaintiff whether he consented to the use of a mortgage to secure David Stein’s alimony and support obligations. At this point, the plaintiff could have objected to the mortgage or to the perceived indefiniteness of the underlying debt. He did not. It would be speculative to assume that, without the plaintiffs consent, Judge Ryan would have ordered David Stein to mortgage the Westport property that the two brothers owned as tenants in common. A person who participates in the structuring of a mortgage, ab initio, is not an innocent third party and is not entitled to the protection of the reasonable notice requirements. See Burt’s Spirit Shop, Inc. v. Ridgway, 215 Conn. 355, 366, 576 A.2d 1267 (1990); Connecticut National Bank v. Esposito, supra, 210 Conn. 227.

It follows from this conclusion that the plaintiff is bound by the terms of the mortgage, regardless of their potential uncertainties. As a form of contractual arrangement, a mortgage may secure indefinite obligations that, although potentially invalid as to third party encumbrancers without notice, are nevertheless valid as to the original parties. See Devlin v. Wiener, supra, 232 Conn. 557 (mortgage can secure performance obligations between original parties); see also Augeri v. C. F. Wooding Co., 173 Conn. 426, 430, 378 A.2d 538 (1977) (courts reluctant to reject contract for uncertainty). Those who are intimately connected with the negotia-. tion and execution of a mortgage risk being assimilated to the rights and obligations of the original encum-brancer. This is one such instance. Just as David Stein could not challenge the validity of the mortgage as it applied to him, so too the plaintiff cannot now attack the mortgage on the basis of terms to which he, himself, agreed.

Our holding in this case is necessarily limited to circumstances in which a purchaser of mortgaged property participates, in some critical way, in the original mortgage transaction. Accordingly, we express no opinion on whether the defendant’s mortgage would have been valid as to an innocent third party.

B

Finally, we address the plaintiffs claim that the trial court made an erroneous finding of fact with respect to his participation in the dissolution proceedings on December 1, 1982. The plaintiff does not deny that he was in the courtroom on that day, or that Judge Ryan inquired whether he would consent to the mortgage. He argues, instead, that his consent was not knowingly given because he did not understand the implications of the question that he answered and was not afforded the opportunity to consult counsel.

It is axiomatic that a trial court’s factual findings are reviewed only for clear error. “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 301, 685 A.2d 305 (1996). The plaintiff, as the appellant, has the responsibility to assist us in this review by ensuring that the rationale underlying the trial court’s findings adequately appears in the appellate record. See Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 714, 462 A.2d 1037 (1983); see also Practice Book § 4051 (appellant may seek articulation from trial court).

The trial court, Tobin, J., acknowledged that the plaintiff claimed that he had been “totally unaware of the circumstances and effect of the mortgage.” Nonetheless, the court found that the plaintiff had consented to the granting of the mortgage and that he had taken the quitclaim deed from his brother “knowing full well the terms of the mortgage.” The plaintiff did not ask the trial court to articulate further the basis on which the court made this finding. See Practice Book § 4051. On this state of the record, we cannot conclude that the trial court’s finding was clearly erroneous. See Steve Viglione Sheet Metal Co. v. Sakonchick, supra, 190 Conn. 714.

The judgment is affirmed.

In this opinion the other justices concurred.

       David Stein was also named as a defendant. He was defaulted, however, for failure to appear and has not participated in this appeal. We will, therefore, refer to HiUebrand as the sole defendant in this case.

       General Statutes § 46b-82 provides in relevant part: “Alimony. At the time of entering the decree, the superior court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable . . . .”
      At the time of Judge Ryan’s dissolution decree, General Statutes (Rev. to 1981) § 4Gb-84 provided in relevant part: “Parents’ obligation for maintenance of minor child, (a) Upon or subsequent to the annulment or dissolution of any marriage or the entry of a decree of legal separation or divorce, the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance.
      “(b) In determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child.

       The terms of the dissolution judgment were eventually incorporated int o a written decision on February 15, 1983.

       The parties agree that the transcript of the dissolution proceeding no longer exists.

       The plaintiff does not, challenge the trial court’s authority, pursuant to § 46b-84, to order one party to a dissolution action to mortgage real property as security for child support obligations. We conclude, moreover, that provisions of § 46b-84 in effect at the time of Judge Ryan’s dissolution decree empowered atrial court to make such an order. This conclusion is buttressed by the legislature’s enactment, in 1989, of § 46b-84 (e) (now subsection [f]), which explicitly authorizes a trial court to order an obligor to secure child support payments by “execut[ing] a bond or postpng] other security sufficient to perform such order for support . . . .”

       This section was originally enacted as General Statutes § 46-52 and was subsequently transferred to § 46b-82.

       Although these terms are frequently conflated, the distinction between a mortgage and a judgment lien is more than semantic. A mortgage is a form of contract and, under Connecticut law, immediately vests legal title in the mortgagee and equitable title in the mortgagor. See Red Rooster Construction Co. v. River Associates, Inc., 224 Conn. 563, 569, 620 A.2d 118 (1993). Foreclosure on a mortgage, moreover, is an equitable action that “precludes further proceedings on the underlying debt” and requires an unsatisfied mortgagee to pursue his rights through a deficiency judgment. Fairfield Plumbing & Heating Supply Corp. v. Kosa, 220 Conn. 643, 649, 600 A.2d 1 (1991). A judgment lien, on the other hand, results from the unilateral act of a creditor and does not vest him with legal title to the subjectproperty. Cf. First Constitution Bank v. Harbor Village Ltd. Partnership, 230 Conn. 807, 821, 646 A.2d 812 (1994). Foreclosure of a judgment lien is an action at law that does not extinguish the underlying debt. See Fairfield Plumbing & Heating Supply Corp. v. Kosa, supra, 649.

       In the future, a dissolution court considering an order for the execution of a mortgage to secure family obligations may be well advised to include provisions to ensure that the mortgage deed specifies (or references other documents that specify), to the extent possible, the maximum potential amount of alimony or support arrearage and the maximum possible duration of the alimony or support obligations. In this way, a subsequent title searcher can become fully apprised of the extent to which mortgaged property is encumbered.

       The fact that the transcript of the original divorce proceedings no longer exists; see footnote 4; does not relieve the plaintiff of this responsibility.

       The plaintiff claims that the two month lapse between Judge Ryan’s oral announcement of the dissolution decree and the subsequent issuance of his memorandum of decision suggests that he never actually delivered the exact terms of this decree orally. Yet, the plaintiff never presented this argument in his trial court brief and never requested an articulation from the trial court on this issue. Accordingly, we decline to address it now. See Practice Book § 4061.


author: PALMER, J.

text:
    WILLIAM A. MARCHETTI v. JOHNNY RAMIREZ ET AL.
    (15417)
    Borden, Berdon, Katz, Palmer and Peters, Js.
    Argued December 5, 1996
    officially released February 18, 1997

      David Thomas Ryan, with whom was Bradford S. Babbitt, for the appellants (defendants).

      Dante R. Gallucci, with whom was Charles L. DeSiena, for the appellee (plaintiff).
   Opinion

PALMER, J.

In this certified appeal, we must decide whether the Appellate Court: (1) applied the proper legal test regarding the standard of proof necessary to support an award of future medical expenses in a tort action; and (2) properly affirmed the judgment of the trial court awarding future medical expenses. The plaintiff, William A. Marchetti, commenced this action seeking damages for injuries he had suffered when he was struck by a truck operated by the named defendant, Johnny Ramirez, and owned by the defendant A.P.A. Truck Leasing Company. After the trial court granted the plaintiffs motion for summary judgment on the issue of liability, the issue of damages was tried to a jury, which returned a verdict in favor of the plaintiff in the amount of $1,015,142. The defendants filed a motion to set aside the verdict claiming, inter alia, that the jury had awarded damages for future medical expenses without proof that there was a reasonable probability that the plaintiff would incur such expenses. The trial court denied the motion and rendered judgment for the plaintiff in accordance with the verdict. The defendants appealed to the Appellate Court, which affirmed the judgment of the trial court. Marchetti v. Ramirez, 40 Conn. App. 740, 673 A.2d 567 (1996). We granted certification, and now affirm the judgment of the Appellate Court.

The relevant facts and testimony may be summarized briefly as follows. On August 7, 1987, the plaintiff, a mechanic and truck driver employed by Monaco Excavating, Inc. (Monaco), was operating a dump truck in the course of his employment. While stopped in traffic, the plaintiffs vehicle was struck from behind by a refrigerated box truck driven by Ramirez and owned by A.P.A. Truck Leasing Company. The impact caused the plaintiff to strike the front and rear windows and dashboard of his truck, resulting in injuries to his head, shoulders and knees. The parties stipulated that the accident was due to a failure of the brakes on the truck driven by Ramirez, and the trial court, Freedman, -/., granted the plaintiffs motion for summary judgment on the issue of liability.

Initially, the plaintiff was treated by Alexander Isgut, his family physician. Isgut referred the plaintiff to Walter Shanley, an orthopedic surgeon, who treated the plaintiff for neck and back injuries and prescribed a regimen of physical therapy.

The plaintiff was unable to return to his job until October, 1987, at which time he was restricted to light duty work. Because Monaco had no light duty work available, the plaintiff accepted a job with a construction company at a reduced hourly rate. Although the plaintiff eventually obtained employment as a union truck driver, his condition deteriorated to the point that Shanley directed him to cease all work in December, 1990.

In March, 1991, tests revealed that the plaintiff was suffering from a herniated disc. Several months later, Shanley and Lawrence Guido, a neurosurgeon, performed a cervical disc removal and fusion on the plaintiff. Thereafter, Shanley referred the plaintiff to Eric Garver, an orthopedic surgeon, who treated the plaintiff up to the time of trial. After his back surgery, the plaintiff was unable to resume employment until September, 1993, when he was hired by Breza Builders to perform light duty construction work. At the time of trial, the plaintiff was employed by Breza Builders on a part-time basis.

During the jury trial on damages, Shanley testified that the plaintiff suffered from a 25 percent permanent disability of the cervical spine and a 15 percent permanent disability of the lumbar spine. Shanley further indicated that the plaintiff might require future medical treatment for his injuries. In his deposition, Guido testified that the plaintiff had a 25 percent permanent disability of the cervical spine, and that the plaintiff would be unable to resume his occupation as a truck driver. Garver testified that the plaintiffs injuries were permanent and had caused a 30 percent disability of the cervical spine and a 10 percent disability of the lumbar spine. Garver also opined that it is likely that the plaintiff will incur future medical expenses for his injuries. The plaintiff testified that his injuries continue to cause him pain and difficulty while sleeping, moving, and performing ordinary daily activities. At the time of trial, the plaintiff was forty-seven years old, his further life expectancy was 28.9 years, and his accident related medical bills totaled $47,037.92.

At the conclusion of the trial, the jury returned a general verdict in favor of the plaintiff in the amount of $1,015,142, which included economic damages of $667,662 and noneconomic damages of $347,480. The defendants filed motions to set aside the verdict and for remittitur, which the trial court denied. The trial court, Pittman, J., added prejudgment interest and attorney’s fees to the jury award and rendered judgment in favor of the plaintiff in the amount of $1,272,142.33.

In the Appellate Court, the defendants challenged the trial court’s denial of the motion to set aside the verdict, claiming, inter alia, that the jury had awarded damages for future medical expenses without proof that it was reasonably probable that the plaintiff would incur such expenses. The Appellate Court, relying on dictum from Seymour v. Carcia, 221 Conn. 473, 604 A.2d 1304 (1992), rejected the defendants’ claim, concluding that “[h]ere, there was testimony that the plaintiff might incur future medical expenses, and the plaintiff testified that he still suffers pain. Therefore, the jury could properly award future medical damages.” Marchetti v. Ramirez, supra, 40 Conn. App. 746.

On appeal to this court, the defendants challenge the propriety of the Appellate Court’s reliance on our dictum in Seymour v. Carcia, supra, 221 Conn. 479. Specifically, they claim that an award of damages for future medical expenses must be supported by proof that there is a reasonable probability that the plaintiff will incur such expenses, and that the Seymour dictum is inconsistent with that standard. The defendants further argue that if the Appellate Court had applied the proper standard, it would have reversed the judgment of the trial court. We agree that our dictum in Seymour is inconsistent with the proper standard insofar as it suggests that an award of damages for future medical expenses may be supported by nothing more than a showing that the injured party might incur such expenses. Because the plaintiff adduced sufficient evidence to satisfy the proper standard, however, we nevertheless conclude that the Appellate Court properly affirmed the judgment of the trial court.

It is well established that “[i]n assessing damages in a tort action, a trier is not concerned with possibilities but with reasonable probabilities.” Sheiman v. Sheiman, 143 Conn. 222, 225, 121 A.2d 285 (1956). Consequently, as we stated in Jerz v. Humphrey, 160 Conn. 219, 224, 276 A.2d 884 (1971), “as to future medical expenses, the jury’s determination must be based upon an estimate of reasonable probabilities, not possibilities.” Indeed, we expressly reaffirmed this principle in Seymour v. Garcia, supra, 221 Conn. 481. The obvious purpose of this requirement is to prevent the jury from awarding damages for future medical expenses based merely on speculation or conjecture. Because, however, “[fjuture medical expenses do not require the same degree of certainty as past medical expenses”; id., 479; “[i]t is not speculation or conjecture to calculate future medical expenses based upon the history of medical expenses that have accrued as of the trial date . . . when there is also a degree of medical certainty that future medical expenses will be necessary. ” (Emphasis added; internal quotation marks omitted.) Id., 478-79.

Contrary to our dictum in Seymour v. Carcia, supra, 221 Conn. 479, we are not persuaded that testimony by a medical expert that the plaintiff might need future treatment, coupled with the plaintiffs assertion that he still suffers pain, necessarily removes the issue of future medical expenses from the realm of conjecture. In such circumstances, the jury still must speculate as to the likelihood that future medical expenses will be incurred. Accordingly, we reject the assertion in Seymour that such evidence “ ‘is sufficient for consideration of the element of future medical expense.’ ” Id.

The plaintiff argues, however, that the evidence he adduced was sufficient to satisfy the proper standard and, therefore, that the trial court properly denied the defendants’ motion to set aside the verdict. We agree. Garver, the plaintiffs treating physician at the time of trial, expressed the opinion that the plaintiff will require future medical treatment for his injuries. Although Garver also stated that he could not predict the cost of such treatment, the evidence established that the plaintiff had received medical treatment for his injuries on a regular basis since the date of the accident, that he had a future life expectancy of 28.9 years, and that the total cost of the treatment as of the date of trial was $47,037.92. “Damages for the future consequences of an injury can never be forecast with certainty. With respect to awards for permanent injuries, actuarial tables of average life expectancy are commonly used to assist the trier in measuring the loss a plaintiff is likely to sustain from the future effects of an injury.” (Internal quotation marks omitted.) Seymour v. Carcia, supra, 221 Conn. 478. Moreover, “[t]he cost and frequency of past medical treatment . . . may be used as a ‘yardstick for future expenses’ if it can be inferred that the plaintiff will continue to seek the same form of treatment in the future. 2 M. Minzer, J. Nates, C. Kimball, D. Axelrod & R. Goldstein, Damages in Tort Actions § 9.55 [4], p. 9-80.” (Internal quotation marks omitted.) Id.

“In considering a motion to set aside the verdict, the court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury’s verdict. . . . The trial court’s refusal to set aside the verdict or to order an additur is entitled to great weight and every reasonable presumption should be given in favor of its correctness. In reviewing the action of the trial court in denying the [motion] ... to set aside the verdict, our primary concern is to determine whether the court abused its discretion and we decide only whether, on the evidence presented, the juiy could fairly reach the verdict [it] did. The trial court’s decision is significant because the trial judge has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their evidence. Moreover, the trial judge can gauge the tenor of the trial, as we, on the written record, cannot, and can detect those factors, if any, that could improperly have influenced the jury. . . . If, on the evidence, the juiy could reasonably have decided as [it] did, [the reviewing court] will not find error in the trial court’s acceptance of the verdict. . . .” (Citations omitted; internal quotation marks omitted.) Childs v. Bainer, 235 Conn. 107, 112-13, 663 A.2d 398 (1995). In light of the evidence regarding the serious nature of the plaintiff’s injury and the likelihood that he will require future medical treatment, we conclude that the juiy reasonably could have awarded the plaintiff damages for future medical expenses. The trial court therefore properly denied the defendants’ motion to set aside the verdict in favor of the plaintiff.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       We granted certification limited to the following two issues: (1) “What is the proper legal standard by which to evaluate expert medical testimony in support of an award for future medical expenses?” and (2) “Applying that standard, should the judgment of the Appellate Court upholding the jury verdict be affirmed?” Marchetti v. Ramirez, 237 Conn. 914, 675 A.2d 884 (1996).

       Monaco was an intervening plaintiff at trial with a workers’ compensation reimbursement claim and is not involved in this appeal.

       See General Statutes § 52-192a.

       The defendants also claimed that the trial court’s failure to set aside the verdict was improper because: “[1] the jury awarded damages for injuries not alleged in the complaint, [2] the plaintiff injected the existence of insurance into the case, so taint ing the jury as to require a mistrial to be declared, and [3] the jury made an award that was unsupported by the evidence and-far in excess of the damages requested by the plaintiff.” Marchetti v. Ramirez, supra, 40 Conn. App. 742. These claims, however, are not the subject of this certified appeal.

       In Seymour v. Carcia, supra, 221 Conn. 479, we stated that future medical expenses may be awarded if “the doctor testifies that the injured party might need future treatment and the injured party testifies he still suffers pain. . . .” (Emphasis added; internal quotation marks omitted.) This statement is dictum because the treating physician in Seymour testified that “based on the plaintiffs past medical history and the permanency of her injuries ... he had ‘no doubt that she would, require medical care in the future.” (Emphasis added.) Id., 476.

       The Appellate Court also rejected the defendants' claim on the alternate ground that it would be inappropriate to set aside the verdict because the jury returned a general verdict from which it cannot be determined whether the plaintiff received any damages for future medical expenses. Marchetti v. Ramirez, supra, 40 Conn. App. 746.

       The trial court instructed the jury that it could award the plaintiff damages for future medical expenses only upon proof that it was “reasonably probable” that the plaintiff would incur such expenses. No party objected to the trial court’s instructions, nor has any party challenged them on appeal.

       The plaintiff claims that we should affirm the judgment of the Appellate Court on the alternate ground that the general verdict returned by the jury does not indicate whether any of the $667,662 it awarded in economic damages was for future medical expenses. See footnote 6. In light of our resolution of the certified issue, we need not reach the plaintiffs alternate ground for affirmance.

       The plaintiff did not claim at trial, nor does he claim on appeal, that he was entitled to damages for future medical expenses simply because his injuries exposed him to a quantifiable risk of future medical expenses. Cf. Petriello v. Kalman, 215 Conn. 377, 397-98, 576 A.2d 474 (1990) (where physician’s negligence was substantial factor in causing plaintiff to suffer abdominal adhesions resulting in 8 to 16 percent chance of future bowel obstruction, plaintiff was entitled to compensation for increased risk of such obstruction). The plaintiff claims, instead, that the evidence established a reasonable probability that he will incur such expenses in the future.

       Garver testified that he had last seen the plaintiff on April 7, 1994, approximately two months prior to the commencement of trial. Garver further testified in relevant part as follows:
      “[The Plaintiffs Counsel]: Is the plaintiff still under your care and treatment for this situation?

        “[Garver]: He’s not under my immediate care in that I am rendering treatment to him at this moment, but his condition I would consider to be an ongoing condition that would require continuing evaluation and treatment in the future pretty much on an as-needed basis.
      * ** *
      “Q. Now, doctor, at the time of the plaintiffs last visit, do you have an opinion, based upon . . . medical expertise, as to whether the medical condition which the plaintiff is suffering from will require reasonable, necessary and customary medical treatment and expenses in the future?
      “A. Yes.
      “Q. All right. And what is that opinion?
      “A. I believe that it will.”