author: PETERS, J.

text:
    LOUIS MAZZONE v. CONNECTICUT TRANSIT COMPANY
    (15599)
    Callahan, C. J., and Berdon, Katz, Palmer and Peters, Js.

      Argued March 21
    officially released May 13, 1997

      Francis X. Drapeau, for the appellant (plaintiff).

      John M. Walsh, Jr., for the appellee (defendant).
   Opinion

PETERS, J.

The principal issue in this appeal is the compensability, under the Workers’ Compensation Act (act), of an injury to an employee that occurred on an employer’s premises during an unpaid lunch break. The claimant, Louis Mazzone, appealed from a decision of the compensation review board (review board) that had affirmed the decision of the workers’ compensation commissioner (commissioner) denying the claimant’s application for workers’ compensation benefits. We transferred the claimant’s appeal from the Appellate Court to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We reverse the decision of the review board and remand the case for further evidentiary proceedings.

The commissioner found the following facts, which are not disputed. The claimant is employed by the defendant, the Connecticut Transit Company, as a heavy duty mechanic. At the time of his injury, the claimant was assigned to work the day shift and was allotted, as part of that shift, an unpaid thirty-five minute lunch period, extending from 11:55 a.m. to 12:30 p.m. During this lunch period, the claimant was required to “punch out” on the time clock. Although the defendant provided a small lunchroom for its employees, the claimant and several of his coworkers usually chose to eat their lunches in unoccupied, out of service buses parked on the defendant’s premises. The defendant was aware of this practice.

During his lunch break on the day of his injury, the claimant and his coworkers were eating their lunches in one such out of service bus. After inadvertently spilling milk, the claimant attempted to exit the bus in order to obtain a paper towel. While he was descending the rear steps of the bus, he fell to the pavement and was injured. As a result of these injuries, the claimant submitted a claim for workers’ compensation benefits. See General Statutes § 31-294c (a) (establishing procedure for submission of claim).

Following an evidentiary hearing, the commissioner determined that the claimant’s injuries were not com-pensable under the act. In so ruling, the commissioner drew two critical conclusions from the facts found: first, that, at the time of his injury, the claimant “was off the time clock and free to leave” and, therefore, not within the period of employment; and second, that the claimant “was not doing anything while on his lunch break in furtherance of the employer’s business or incidental to it.” The claimant appealed from the commissioner’s decision to the review board; see General Statutes § 31-301; which, on the basis of the facts found by the commissioner, affirmed the commissioner’s decision. In its written decision, the review board restated the commissioner’s key conclusions and determined that those conclusions were not contrary to the law establishing eligibility for workers’ compensation. See McNamara v. Hamden, 176 Conn. 547, 550-51, 398 A.2d 1161 (1979). This appeal followed.

On appeal, without challenging the factual findings made by the commissioner, the parties dispute the propriety of the review board’s legal conclusion that the claimant had failed to establish a compensable injury. A close examination of the record reveals that, in accordance with the applicable law of compensation eligibility, this broad compensability issue turns on the resolution of three narrower questions: (1) whether the claimant was within the period of his employment during the unpaid lunch break taken on the defendant’s premises; (2) whether the claimant, by choosing to eat lunch on an out of service bus, was in a place in which he reasonably was entitled to have been; and (3) whether the claimant, in eating lunch, was engaged in an activity incidental to his employment. See id. We conclude that, as a matter of law, questions one and three must be answered in the affirmative and, consequently, reverse the decision of the review board. Because, however, the answer to question two depends on a question of fact with respect to which the findings of the commissioner are not sufficiently clear, we remand this matter for further evidentiary proceedings.

Our standard of review in workers’ compensation cases is well established. “The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Besade v. Interstate Security Services, 212 Conn. 441, 449, 562 A.2d 1086 (1989). Although a claimant has a statutory right to appeal an adverse decision to the review board, the review board’s scope of review is limited. Six v. Thomas O’Connor & Co., 235 Conn. 790, 798-99, 669 A.2d 1214 (1996) (review board does not conduct de novo hearing). It “may take additional material evidence . . . only if it is shown to its satisfaction that good reasons exist as to why the evidence was not presented to the commissioner. Otherwise, it is obliged to hear the appeal on the record and ‘not retry the facts. ’ ” Fair v. People’s Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988); see also General Statutes § 31-301 (b) (describing scope of review).

As is the standard of review, the law governing eligibility for workers’ compensation is also well established. “It is an axiom of [workers’] compensation law that awards are determined by a two-part test. The [claimant] has the burden of proving that the injury claimed arose out of the employment and occurred in the course of the employment. There must be a conjunction of [these] two requirements ... to permit compensation.” (Emphasis added; internal quotation marks omitted.) McNamara v. Hamden, supra, 176 Conn. 550. The former requirement relates to the origin and cause of the accident, while the latter requirement “relates to the time, place and circumstances of the accident.” Id.

In this case, as in McNamara, “it appears that the parties, the commissioner, and the [review board] have implicitly treated the injury sustained as one ‘arising out of the employment, and their focus on this appeal has been on the ‘in the course of employment aspect of the test.” Id. Although the parties repeatedly recite both parts of the test in support of their respective arguments, their unelaborated references to the “arising out of’ language are merely incidental to the issue that lies at the crux of their dispute, and at the heart of the commissioner’s and the board’s decisions, namely, whether the claimant was “in the course of his employment” at the time of his injury. “Thus, we will confine our discussion and review to that element in deciding this case.” Id.

In order to establish that his injury occurred in the course of employment, the claimant has the burden of proving that the accident giving rise to the injury took place “(a) within the period of the employment; (b) at a place [he] may reasonably [have been]; and (c) while [he was] reasonably fulfilling the duties of the employment or doing something incidental to it.” Id., 550-51; see also Spatafore v. Yale University, 239 Conn. 408, 418, 684 A.2d 1155 (1996); 1 A. Larson & L. Larson, Workmen’s Compensation (1996) § 14.00, p. 4-1. These three parts of the required proof of the “in the course of employment” test correspond, respectively, to the “time, place and circumstances of the accident.” See McNamara v. Hamden, supra, 176 Conn. 550.

In this case, the commissioner and the review board concluded that the claimant had failed to satisfy the first part of this test because his accident had taken place while he had been “on an unpaid lunch break.” They also concluded that the claimant had failed to satisfy the third part because, at the time of his accident, he had been eating lunch and, therefore, was “not doing anything . . . incidental to” his employment. We disagree, as a matter of law, with both of these conclusions.

With respect to the time requirement portion of the “in the course of employment” test, we previously have held that “[temporary suspension of work by an employee for a permitted rest period, or lunch hour, or for satisfying the wants of nature . . . have not been generally held sufficient to break the continuity of the employment.” Vitas v. Grace Hospital Society, 107 Conn. 512, 515, 141 A. 649 (1928). Contrary to the position of the defendant, it is not dispositive that the claimant was officially “off the clock” and “on his own time” at the moment of his injury. Where, as here, a lunchtime injury takes place on the employer’s premises, that injury may be said to have occurred “in the course of employment, even though the [lunch] interval is technically outside the regular hours of employment in the sense that the worker receives no pay for that time and is in no degree under the control of the employer, being free to go where he pleases.” 1A A. Larson & L. Larson, supra, § 21.21 (a), p. 5-6. Under these circumstances, an employee is as much within the period of employment as was the employee in McNamara who, while playing a game of ping-pong, off the clock, five minutes prior to the work day, suffered a compensable injury. McNamara v. Hamden, supra, 176 Conn. 551 (“[t]he exact time [of injury] is not significant” for purposes of compensation, as long as injury takes place on premises and in close temporal proximity to work day); see also Hughes v. American Brass Co., 141 Conn. 231, 234, 104 A.2d 896 (1954) (injuries coming and going to work may be within period of employment regardless of fact that they occur before work begins). We conclude, accordingly, that the claimant’s unpaid lunch break occurred within the “period of employment” and thus satisfies the first part of the “in the course of employment” test.

With respect to the third part of this test, the circumstances requirement, we also previously have held that “[ejating in the lunch hour, and other personal acts . . . are incidental to the employment . . . .” (Emphasis added.) Vitas v. Grace Hospital Society, supra, 107 Conn. 516. Contrary to the position of the defendant, it is not dispositive that the activity of eating lunch did not further the claimant’s employment directly. “Acts of ministration by a servant to himself, such as . . . relieving his hunger . . . performance of which while at work are reasonably necessary to his health and comfort, are incidents to his employment [within the act] though they are only indirectly conducive to the purpose of the employment.” (Internal quotation marks omitted.) Lovallo v. American Brass Co., 112 Conn. 635, 639, 153 A. 783 (1931); see also Vitas v. Grace Hospital Society, supra, 107 Conn. 516 (eating lunch on employer’s premises is for “mutual benefit and convenience” of employee and employer). It would be illogical to hold that, if they occur on the employer’s premises, injuries related to such employer sanctioned activities as playing ping-pong; McNamara v. Hamden, supra, 176 Conn. 547; or smoking; Puffin v. General Electric Co., 132 Conn. 279, 43 A.2d 746 (1945); are incidental to employment, while injuries associated with the equally sanctioned activity of eating lunch are not. We conclude, accordingly, that the claimant has established that the activity of eating lunch, out of which his injuries reasonably arose, was incidental to his employment. He has, therefore, satisfied the third prong of the “in the course of employment” test.

In view of our conclusion that the claimant has satisfied the first and third parts of this test, we cannot sustain the decisions of the commissioner and the review board on the grounds upon which they were rendered. This determination, however, does not end our inquiry. Because a lower court or administrative decision may be affirmed on any available alternate ground; see Bernstein v. Nemeyer, 213 Conn. 665, 669, 570 A.2d 164 (1990); we must also determine if, on the record before us, the claimant has satisfied the second part of the “in the course of employment” test by proving that, at the time of his injury, he was “at a place [he] may reasonably [have been].” McNamara v. Hamden, supra, 176 Conn. 551.

We begin by noting that, under this part of the “in the course of employment” test, the claimant cannot prevail simply by proving that he was on the employer’s premises at the time of his injury. Because an employer retains the right to prohibit its employees from entering certain parts of the employment premises, the claimant in this case, in order to be eligible for compensation, must have had a right to be on the out of service bus when his accident occurred. See 1A A. Larson & L. Larson, supra, § 21.21 (d), p. 5-18 (“there is no magic in being on the premises, if the employee is injured by getting in to places where he has no right to go”). We conclude that the claimant had such a right only if the defendant had either approved of or acquiesced in the claimant’s presence on an out of service bus during the lunch time period. Cf. McNamara v. Hamden, supra, 176 Conn. 555 (requiring employer acquiescence under third part of “in the course of employment” test).

Predictably, the parties dispute the question of the defendant’s approval or acquiescence to lunching on one of its out of service buses. The defendant contends that it had a policy pursuant to which employees were not permitted to board unoccupied buses during their lunch hour and that the claimant was in violation of this policy at the time of injury. The claimant, however, contends that the defendant had acquiesced in the practice of boarding unoccupied buses by failing, over the course of many years, to put a stop to the practice.

We conclude, in light of the ambiguity of the record before us, that the answer to this question turns on an unresolved issue of fact. In relevant findings, the commissioner stated only that “the [defendant] was aware that some employees ate their lunch on unoccupied buses in the yard.” (Emphasis added.) Whether this awareness constitutes tacit approval or acquiescence sufficient to render an out of service bus a “reasonable” place for the claimant to have eaten his lunch poses an issue of fact that the commissioner did not resolve. Although the claimant asks us to infer acquiescence, we decline to enlarge the proper scope of our appellate review either by finding facts or by drawing inferences from the facts actually found. See Besade v. Interstate Security Services, supra, 212 Conn. 449 (function of commissioner to find facts); see also State v. Bruno, 236 Conn. 514, 546, 673 A.2d 1117 (1996) (fact finder draws inferences from facts).

“Ordinarily, [when the record is unclear] the appellant has the responsibility to seek an articulation by the [commissioner] in order to furnish an adequate appellate record.” Lauer v. Zoning Commission, 220 Conn. 455, 471 n.16, 600 A.2d 310 (1991); see also Practice Book § 4007 (burden on appellant to provide adequate record for review). We decline, however, to dispose of this appeal on the basis of the claimant’s failure to request such an articulation. In his written decision, the commissioner focused only on the first and third parts of the “in the course of employment” test. The claimant, therefore, reasonably could have assumed that, having denied his claim for compensation on the basis of the first and third of three available grounds, the commissioner implicitly had determined that the claimant had satisfied the second ground or implicitly had decided that the second ground was not an issue. Although we now conclude that the second part of the “in the course of employment” test is an important, unresolved issue and that the commissioner’s finding regarding that part is too ambiguous to serve as a basis for appellate review, this deficiency in the administrative record would not necessarily have been immediately apparent to the claimant. See Lauer v. Zoning Commission, supra, 471 n.16. Under these circumstances, we choose to exercise our authority pursuant to the rules of practice; see Practice Book § 4061; to remand this matter for further articulation by the commissioner with respect to whether the claimant, at the time of his injury, was at a place where he reasonably was entitled to have been.

The judgment is reversed and the case remanded to the review board with direction to remand it to the commissioner for further proceedings according to law.

In this opinion the other justices concurred.

       General Statutes §§ 31-275 through 31-355a.

       Specifically, the commissioner found that “[t]here is no issue in regard to the fact that the [defendant] was aware that some employees ate then-lunch on unoccupied buses in the yard.” The commissioner also noted, however, that the defendant “denie[d] that the use of unoccupied buses by employees for lunch breaks is a sanctioned practice.”

       At oral argument, the defendant agreed that these were the two crucial conclusions drawn by the commissioner.

       Wo express no opinion on the compensability of a lunchtime injury on the employer’s premises that results from activities that the employer has not permitted. In the present case, there is no dispute that the defendant permitted its employees to eat lunch during the lunch break.

       Contrary to the defendant’s argument, the fact that the claimant was, at the time of his injury, getting up to get a paper towel rather than getting up to go back to work does not undermine this conclusion. In McNamara, for example, we held that an injury associated with playing ping-pong was compensable, despite the fact that, at the time of his accident, the injured employee was in the middle of a game and not in the process of going to work. McNamara v. Hamden, supra, 176 Conn. 549.

       The commissioner also noted, without stating a clear finding, that the defendant had claimed not to have sanctioned the use of out of service buses during the lunchtime period. See footnote 2.

       This importance is demonstrated by the defendant’s concession, at oral argument, that, if the claimant’s injury had in fact taken place in an authorized location, such as a designated lunchroom, the factual scenario would be virtually indistinguishable from that in McNamara, a case in which we held an employee’s injuries compensable.

       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 . . . .”


source: Caselaw Access Project

author: KATZ, J. BORDEN, J.,

license: Public Domain

text:
    WILLIAM MAZZIOTTI v. ALLSTATE INSURANCE COMPANY
    (15505)
    Borden, Berdon, Norcott, Katz and Palmer, Js.
    Argued January 21
    officially released May 13, 1997

      Linda L. Morkan, with whom, on the brief, were Stephen E. Goldman and Raymond T. DeMeo, for the appellant (defendant).

      Stephen B. Alderman, with whom was Debra S. Grog-gins, for the appellee (plaintiff).

      Joram Hirsch filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.
   Opinion

KATZ, J.

The dispositive issue in this appeal is whether, in an action by the plaintiff insured to recover damages under the uninsured/underinsured motorist provision of his automobile insurance policy issued by the defendant insurance company, the defendant is bound by the judgment obtained by the insured in his prior action against the tortfeasor. The defendant, Allstate Insurance Company (Allstate), appeals from the judgment of the trial court in favor of the plaintiff, William Mazziotti. Allstate claims that because it was not in privity with the tortfeasor it is not bound by the judgment in the earlier action, and may, therefore, contest the issue of damages in the action brought against it by the plaintiff. We agree.

The following facts are undisputed. On July 15, 1991, the plaintiff, William Mazziotti, while stopped at a red traffic light, was struck by a motor vehicle operated by Bei-Rong Ye. Ye had automobile liability insurance with Patriot General Insurance Company (Patriot General), with a liability limit of $20,000.

On April 8, 1992, the plaintiff filed suit against Ye. In that action, entitled Mazziotti v. Ye, Superior Court, judicial district of New Haven, Docket No. CV920330855S (June 30, 1993), the plaintiff moved for summary judgment. The motion was granted as to liability only. Thereafter, the plaintiff sought leave to implead Allstate, with whom he had an automobile insurance policy providing uninsured/underinsured motorist coverage with a limit of $100,000, as a party defendant in that action. The purpose of seeking to implead Allstate was to determine its liability under the underinsured motorist coverage provisions of the policy. Although the plaintiffs motion to implead Allstate was granted, he never actually made Allstate a party to that action. On June 30, 1993, after a hearing in damages in the action against Ye, a judgment of $68,867 was rendered for the plaintiff.

On May 27, 1993, thirty-four days before the hearing in damages in the action against Ye, the plaintiff brought the present action against Allstate, seeking coverage under the underinsured motorist provision of his policy. In his complaint, the plaintiff did not refer to his then pending action against Ye. The plaintiff alleged only that he would exhaust the full amount of the liability insurance available under Ye’s automobile insurance policy.

On October 26, 1993, the plaintiff brought a separate action against Patriot General alleging, inter alia, that, as Ye’s insurer, it had acted in bad faith in its dealings with him. Mazziotti v. Patriot General Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV930353278S (withdrawn per release filed February 9,1995). On February 9,1995, Patriot General, on behalf of Ye, paid the plaintiff the $20,000 bodily injury liability limit under Ye’s policy. On March 14, 1995, the plaintiff filed a satisfaction of the judgment in his action against Ye. Patriot General also paid the plaintiff an additional $20,000 to settle the claims asserted in the separate bad faith action.

In the present action, the plaintiff seeks to collect from Allstate, under the terms of his insurance policy, “those damages which [he] is legally entitled to recover from the owner or operator of an uninsured auto . . . ,” There are three other provisions of the insur-anee policy issued by Allstate that are pertinent: the “consent to sue” provision that states that Allstate is not bound by any judgment resulting from an action by its insured against a responsible third party unless Allstate has given its written consent for the action; and two separate provisions that allow for a reduction in the insured’s recovery for any recovery the insured may obtain from another insurer or responsible party.

On February 4,1994, the plaintiff moved for summary judgment as to the issue of Allstate’s liability only. The record reflects that Allstate did not object. Following the granting of that motion, the case was scheduled for a hearing in damages pursuant to Practice Book § 365 et seq. Thereafter, when the case came before the trial court for jury selection on the hearing in damages, the plaintiff filed a “motion for judgment.” Allstate opposed the motion, asserting that: (1) because Allstate lacked privity with Ye, the doctrine of collateral estoppel could not apply in this case; and (2) because the plaintiff had failed to obtain Allstate’s written consent to bring the action against Ye pursuant to the terms of the policy, the judgment obtained by the plaintiff against Ye was not binding on Allstate as to the amount of damages the plaintiff was entitled to recover under the policy. On January 22, 1996, the trial court granted the plaintiffs motion for judgment, determining that Allstate had had sufficient notice of the prior action against Ye to render the judgment in that case binding upon Allstate and, further, that the consent to sue clause upon which Allstate relied was against public policy. Accordingly, the trial court held that Allstate was bound by the $68,867 judgment in the plaintiffs action against Ye, and rendered judgment for the plaintiff in the amount of $44,374.29. Additionally, the trial court awarded interest on the judgment from the date of the filing of the complaint at a rate of 12 percent per annum, pursuant to General Statutes § 52-192a.

Thereafter, on February 9, 1996, Allstate, indicating that no new testimony would be required, moved, pursuant to Practice Book §§ 204A and 326, to open the judgment, raising, inter alia, the claim that, in light of the satisfaction of judgment that the plaintiff had filed in his action against Ye, the plaintiff was not “legally entitled” to the judgment. Claiming that Allstate had advanced no new or valid reason upon which the trial court should act, the plaintiff objected to the motion. The trial court denied Allstate’s motion without opinion. Allstate 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, Allstate makes the following arguments: (1) in light of the satisfaction of judgment filed by the plaintiff in his action against Ye, the plaintiff was not “legally entitled” to recover further damages from Ye and, consequently, may not recover any underinsured motorist benefits under his automobile insurance policy with Allstate; (2) even if Allstate’s underinsured motorist coverage applies in this case, the judgment of the trial court must be reversed because (a) despite the terms of the policy requiring the plaintiff to obtain written consent from Allstate to bring the action against Ye, the plaintiff never obtained such consent, (b) Allstate was not in privity with Ye and thus is not bound by the judgment in the plaintiffs action against Ye, and (c) Allstate had not received notice of the pendency of the plaintiffs action against Ye and, therefore, binding Allstate to the judgment in that action would violate Allstate’s rights to due process and to its constitutionally guaranteed right to a trial by jury; (3) even if the plaintiff is entitled to recover under the underinsured motorist coverage, that recovery must, contrary to the trial court’s judgment, be reduced by the entire $40,000 the plaintiff received from Ye’s insurer; and (4) the trial court improperly awarded interest pursuant to § 52-192a, because that provision applies only when there has been a trial and there was no trial in this case. We conclude that, because Allstate did not have timely notice of the underlying action against Ye, the trial court improperly concluded that Allstate was bound by the judgment in that action.

I

Allstate first claims that the trial court should have granted its motion to open the judgment in the present case. Specifically, Allstate argues that because the plaintiff was not “legally entitled” to recover further damages from Ye, he was not entitled to recover any underin-sured motorist benefits under the terms of his policy with Allstate.

The law of judgments and satisfaction of judgments is well settled. The construction of a judgment is a question of law with the determinative factor being the intent of the court as gathered from all parts of the judgment. 2 E. Stephenson, Connecticut Civil Procedure (C. Tait & P. Adomeit 1978) § 351 (e). As a general rule, the court should “construe [a] judgment as it would construe any document or written contract in evidence before it. Jordan, Marsh & Co. v. Patterson, 67 Conn. 473, 35 Atl. 521 [1896]; De Santo v. Burkle, 106 Conn. 677, 138 Atl. 738 [1927].” Grasso v. Frattolillo, 111 Conn. 209, 212, 149 A. 838 (1930). “ ‘Effect must be given to that which is clearly implied as well as to that which is expressed.’ ” Lashgari v. Lashgari, 197 Conn. 189, 197, 496 A.2d 491 (1985). As we recently have stated, “[although ordinarily the question of contractual intent presents a question of fact for the ultimate fact finder, where the language is clear and unambiguous it becomes a question of law for the court.” (Internal quotation marks omitted.) Gateway Co. v. DiNoia, 232 Conn. 223, 232, 654 A.2d 342 (1995).

“ ‘The satisfaction of a judgment refers to compliance with or fulfillment of the mandate thereof.’ ” 47 Am. Jur. 2d, Judgments § 979 (1969). “There is realistically no substantial difference between the words ‘paid’ and ‘satisfied’ in the judgment context. See Ex parte Krouse, 148 Cal. 232, 233, 82 P. 1043 (1905).” Lashgari v. Lashgari, supra, 197 Conn. 200. Whether the satisfaction of judgment operates to discharge the judgment in any given case also depends upon intent; specifically, the clearly expressed intention of the parties making and accepting the payment. Dwy v. Connecticut Co., 89 Conn. 74, 83, 92 A. 883 (1915). “The cardinal rule of interpretation is the discovery of the intent and meaning of the parties from the language used . . . .” Id., 88. As with a contract, in determining the meaning and effect of the controverted language in the satisfaction, the inquiry must focus on the intention expressed in the document and not on what intention existed in the minds of the parties. See Water & Way Properties v. Colt’s Mfg. Co., 230 Conn. 660, 666, 646 A.2d 143 (1994).

Allstate argues that there is nothing in the satisfaction of judgment to suggest that the plaintiff did not intend to discharge Ye from any further liability for the judgment in question. Cf. Skut v. Hartford Accident & Indemnity Co., 142 Conn. 388, 397, 114 A.2d 681 (1955) (where satisfaction of judgment against principal for tort of agent expressly states that acceptance of payment is not waiver of larger judgment against agent, payment constituted satisfaction of larger judgment only to that extent). Allstate maintains that there is no ambiguity in the language used in the satisfaction of judgment. Rather, Allstate contends, the satisfaction clearly provides that the judgment in the case has been satisfied, and expressly divides the money into categories of costs and interest, leaving nothing open to interpretation.

In contrast, as evidence that he had never intended the document in question to constitute a full satisfaction, the plaintiff points to the fact that the present action was pending at the time the satisfaction of judgment was filed. Furthermore, although the plaintiff acknowledges that there can be but one satisfaction of damages; see Burkhardt v. Armour & Co., 115 Conn. 249, 257, 161 A. 385 (1933); and that it was incumbent upon him as the party claiming that the satisfaction of judgment was only a partial discharge to express clearly that intent in the satisfaction, he nevertheless argues that his failure to do so was a mistake, which he could demonstrate if given the opportunity. See Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 780-81, 653 A.2d 122 (1995).

We need not decide whether the law of satisfaction of judgments should apply to the present case to preclude recovery against Allstate under the plaintiffs underin-sured motorist policy. Even if we were to agree with Allstate that application of the law of satisfaction of judgments to the present case would prevent the plaintiff from recovering any further damages from Ye or Allstate, the timing and the circumstances under which Allstate first raised this issue lead us to conclude that the trial court did not improperly deny Allstate’s motion to open the judgment.

“The principles that govern motions to open or set aside a civil judgment are well established. Within four months of the date of the original judgment, Practice Book § 326 vests discretion in the trial court to determine whether there is a good and compelling reason for its modification or vacation. . . . Gillis v. Gillis, 214 Conn. 336, 340-41, 572 A.2d 323 (1990); Sanchez v. Warden, 214 Conn. 23, 35, 570 A.2d 673 (1990); Acheson v. White, 195 Conn. 211, 214-15, 487 A.2d 197 (1985); Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 713, 462 A.2d 1037 (1983). Hirtle v. Hirtle, 217 Conn. 394, 398, 586 A.2d 578 (1991).” (Internal quotation marks omitted.) Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, supra, 231 Conn. 786.

Because opening a judgment is a matter of discretion, the trial court was not required to open the judgment to consider a claim not previously raised. “The exercise of equitable authority is vested in the discretion of the trial court and is subject only to limited review on appeal.” Wilkinson v. Boats Unlimited, Inc., 236 Conn. 78, 84, 670 A.2d 1296 (1996). “We do not undertake a plenary review of the merits of a decision of the trial court to grant or to deny a motion to open a judgment. The only issue on appeal is whether the trial court has acted unreasonably and in clear abuse of its discretion.” In re Baby Girl B., 224 Conn. 263, 294-95, 618 A.2d 1 (1992). “In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. State v. Bitting, 162 Conn. 1, 11, 291 A.2d 240 (1971); E.M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 612, 153 A.2d 463 (1959). . . . Walton v. New Hartford, 223 Conn. 155, 169, 612 A.2d 1153 (1992). . . . Somers v. LeVasseur, 230 Conn. 560, 570-71, 645 A.2d 993 (1994).” (Internal quotation marks omitted.) Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, supra, 231 Conn. 786.

We cannot conclude that the trial court abused its discretion in denying Allstate’s motion to open the judgment. After the trial court already had rendered judgment in favor of the plaintiff, Allstate, in its motion to open the judgment, raised for the first time its claim that because the plaintiff had furnished Ye with a satisfaction of judgment, the plaintiff was barred from pursuing his underinsured motorist claim. Allstate stated in the motion that no testimony was needed. Furthermore, in denying the motion, the trial court did not reveal the basis upon which it made its decision. Consequently, we do not know whether the trial court considered the question of whether the plaintiff was legally entitled to recover from Allstate, or whether the trial court exercised its discretion by refusing to consider the merits because the motion had not been timely. We do not know this information because, despite its responsibility to secure an adequate record, Allstate failed to make the record clear by seeking an articulation from the trial court. See Practice Book §§ 4007 and 4051. Accordingly, we conclude that the trial court did not act in clear abuse of its discretion.

II

Allstate next claims that the trial court’s determination that the doctrine of collateral estoppel applied to bind Allstate was improper because: (1) the plaintiff had failed to obtain Allstate’s consent to bring the action against Ye in accordance with the provisions of the policy; and (2) Allstate and Ye were not in privity. Specifically, in connection with its first assertion, Allstate claimed before the trial court that the plaintiff had not obtained its written consent to sue pursuant to the underinsured motorist provision of the policy, which provides that “[i]f an insured person sues a person believed responsible for the accident without our written consent, we aren’t bound by any resulting judgment.” Because consent to sue provisions are directly authorized by § 38a-334-6 (b) of the Regulations of Connecticut State Agencies, Allstate argued that the failure to comply with its policy provision precluded the plaintiff from relying on the earlier judgment obtained against Ye. The plaintiff argued in response that the regulation allows a consent to sue provision only in the arbitration context, and that to extend it to the present case would violate public policy because it conflicts with General Statutes § 38a-336 (a) (1).

The trial court determined that the consent to sue provision in Allstate’s policy “applies only in the context of arbitration between the insured and the insurer, not to underinsured motorist benefits in general,” and that to extend it to the present case would be against public policy. The trial court further concluded that because Allstate and Ye were indeed in privity and because Allstate had notice of the plaintiffs earlier action against Ye, Allstate was bound by the judgment in that action. We conclude that, because the trial court’s finding of privity was improper, the defendant could not be bound by the judgment in the action by the plaintiff against Ye.

“Because res judicata or collateral estoppel, when properly raised and established, will preclude a claim or issue, respectively, the defendant’s invocation of this principle must first be resolved. We have recently had an opportunity to address these two doctrines, their similarities and their differences. Jackson v. R. G. Whip ple, Inc., 225 Conn. 705, 712-13, 627 A.2d 374 (1993), and cases cited therein. Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum. [CJlaim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits. . . . [I]ssue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit. Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988), quoting Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392, 401-402, 546 A.2d 284 (1988), aff'd, 211 Conn. 67, 557 A.2d 540 (1989).” (Internal quotation marks omitted.) Crochiere v. Board of Education, 227 Conn. 333, 342-43, 630 A.2d 1027 (1993).

The two doctrines “protect the finality of judicial determinations, conserve the time of the court and prevent wasteful relitigation.” (Internal quotation marks omitted.) Virgo v. Lyons, supra, 209 Conn. 501. “Res judicata, or claim preclusion, is distinguishable from collateral estoppel, or issue preclusion. Under the doctrine of res judicata, a final judgment, when rendered on the merits, is an absolute bar to a subsequent action, between the same parties or those in privity with them, upon the same claim. Slattery v. Maykut, 176 Conn. 147, 156-57, 405 A.2d 76 (1978). In contrast, collateral estoppel precludes a party from rehtigating issues and facts actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them upon a different claim. DeLaurentis v. New Haven, 220 Conn. 225, 239, 597 A.2d 807 (1991).” Weiss v. Statewide Grievance Committee, 227 Conn. 802, 818, 633 A.2d 282 (1993). Furthermore, “[t]o invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding. Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 297, 596 A.2d 414 (1991).” Crochiere v. Board of Education, supra, 227 Conn. 345. Both issue and claim preclusion “express no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest.” State v. Ellis, 197 Conn. 436, 465, 497 A.2d 974 (1985).

The present case presents a question of issue preclusion, which requires an identity of issues between the prior and subsequent proceedings and operates only against the same parties or those in privity with them. “While it is commonly recognized that privity is difficult to define, the concept exists to ensure that the interests of the party against whom collateral estoppel [or res judicata] is being asserted have been adequately represented because of his purported privity with a party at the initial proceeding. ... A key consideration in determining the existence of privity is the sharing of the same legal right by the parties allegedly in privity. . . . Aetna Casualty & Surety Co. v. Jones, [supra, 220 Conn. 304].” (Internal quotation marks omitted.) Weiss v. Statewide Grievance Committee, supra, 227 Conn. 818. “This is to ensure that the interests of the party against whom collateral estoppel is being asserted have been adequately represented because of his puiported privity with a party at the initial proceeding.” State v. Fritz, 204 Conn. 156, 173, 527 A.2d 1157 (1987).

Privity is a difficult concept to define precisely. Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., 227 Conn. 175, 193, 629 A.2d 1116 (1993). There is no prevailing definition of privity to be followed automatically in every case. It is not a matter of form or rigid labels; rather it is a matter of substance. In determining whether privity exists, we employ an analysis that focuses on the functional relationships of the parties. Privity is not established by the mere fact that persons may be interested in the same question or in proving or disproving the same set of facts. Rather, it is, in essence, a shorthand statement for the principle that collateral estoppel should be applied only when there exists such an identification in interest of one person with another as to represent the same legal rights so as to justify preclusion. Joe’s Pizza, Inc. v. Aetna Life & Casualty Co., 236 Conn. 863, 868, 675 A.2d 441 (1996).

In State v. Fritz, supra, 204 Conn. 170-77, the court examined the unity of interests shared by two different agencies representing the state, the commissioner of consumer protection and the state’s attorneys within the division of criminal justice. At the defendant’s criminal trial, the defendant moved to dismiss the information charging him with prescribing a controlled substance in an unauthorized manner in violation of General Statutes §§ 21a-277 (a) and 21a-252 (a). He claimed that the issues in the criminal case had been fully and fairly litigated in his favor in a prior administrative proceeding in which the hearing officer had considered the allegation that the defendant had improperly and illegally prescribed medication and had decided not to suspend the defendant’s license to practice medicine. This court disagreed, concluding that, although both parties had represented the rights of the state, privity did not exist.

In reaching that conclusion, the court reasoned that the “purpose of the administrative proceedings ... is to police licensing requirements within the state, while the state’s attorney’s interest in the criminal proceeding is in having guilt or innocence determined under the applicable criminal law and in seeing that proper punishment is meted out in the event that the criminal law has been violated.” Id., 176. The administrative proceeding focused exclusively on the issue of licensing and not on the broader question of criminal culpability. Nor did the commissioner represent the public interest in the effective administration of criminal justice. Because this administrative proceeding did not serve “the state’s interest in having guilt or innocence determined”; id.; the defendant could not establish the privity critical to the application of collateral estoppel.

A more recent discussion of privity expands on the analysis of Fritz. In Aetna, Casualty & Surety Co. v. Jones, supra, 220 Conn. 286, we examined “whether an insurance company may use collateral estoppel to bar the heirs of a homicide victim from relitigating the issue of the criminal defendant’s intent to cause the injuries that resulted in the victim’s death.” In the earlier criminal trial, the defendant, Russell Manfredi, had been charged with the intentional murder of his wife. Although he admitted killing her, he denied that he had intended to kill her. Nevertheless, the jury found Manfredi guilty of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (2). To reach that conclusion, the jury would have been required to find that the state had proved that Manfredi had intentionally killed his wife, but that he suffered from an extreme emotional disturbance at the time of the killing. Id., 288.

Thereafter, Margaret Billings Jones, the administra-trix of the victim’s estate, brought a wrongful death action against Manfredi, who was the named insured on a homeowner’s insurance policy and a personal excess indemnity insurance policy, both of which had been issued by Aetna Casualty and Surety Company (Aetna). Both policies contained language limiting coverage only to those injuries not intentionally caused by the insured. Following a default judgment against Manfredi resulting in an order to pay $450,000 to the victim’s estate, Aetna filed a declaratory judgment action to establish that the insurance policies provided by Aetna did not apply to cover the award, because the injuries suffered by the victim had been caused intentionally by Manfredi, the insured. Aetna subsequently moved for summary judgment, claiming that the finding by the jury in the criminal trial that Manfredi intentionally had caused the victim’s death collaterally estopped the executrix and Manfredi from relitigating the issue of Manfredi’s intent. The trial court denied the motion. Id., 288-89.

We reversed the trial court and remanded the case with direction to render judgment in favor of the plaintiff. Id., 307. We focused on whether the parties shared the same legal right and determined that Manfredi and his victim shared the same legal right to recover damages. Id., 305. The claims of the victim’s heirs upon the coverage of the insurance policy emanated from the contractual relationship between the insurer and Man-fredi. Consequently, the heirs’ rights could only be as good as the rights that Manfredi could assert under the insurance contract. Id., 306. Because Manfredi and his victim shared an identical legal right in the potential proceeds derived from the contractual relationship between Manfredi and his insurance company, we held that Manfredi and the victim’s heirs shared a legal interest placing them in privity. Id.

In addition, we examined whether Manfredi had had a fair and full opportunity to litigate the issue of intent at the first trial. We recognized that had the offense been of a minor or trivial nature, Manfredi might not have been motivated sufficiently to challenge the allegations made at trial, in which case it might be unfair to allow collateral estoppel to be asserted later against him or someone in privity with him. Because Manfredi had been charged with murder, however, and therefore faced a potential sentence of life imprisonment, “his motivation to prove a lack of intent was compelling.” Id., 306-307. Accordingly, we concluded “that, the issue of his intent was thoroughly litigated” in the first trial. Id., 307.

In the present case, Allstate argues that it was not in privity with Ye because its “exposure was different” — Ye had an automobile policy limit with a $20,000 liability limit, while Allstate’s exposure was $100,000. Although we agree that this difference is relevant in evaluating whether Ye had been motivated sufficiently to protect the rights and interests of Allstate; id., 306; we nevertheless conclude that because Ye and Allstate did not share the same legal right, they were not in privity.

The substance of the cause of action in the first trial was an action in tort; specifically, whether Ye was liable to the plaintiff for the negligent operation of his motor vehicle. An action to recover under an automobile insurance policy, on the other hand, is not an action in tort but, rather, an action in contract. “The obligation of [an] insurance carrier providing uninsured motorist coverage as a part of its liability insurance coverage on the automobile of the insured person is a contractual obligation arising under the policy of insurance.” (Emphasis in original.) State Farm Mutual Automobile Ins. Co. v. Board of Regents of the University System of Georgia, 226 Ga. 310, 311, 174 S.E.2d 920 (1970). Payments made pursuant to an uninsured motorist policy are paid on behalf of the insured, and not on behalf of the financially irresponsible motorist who has caused the insured’s injuries. Pecker v. Aetna Casualty & Surety Co., 171 Conn. 443, 452, 370 A.2d 1006 (1976). The insurer is not the alter ego of the tortfeasor and, although its contractual liability is premised in part on the contingency of the tortfeasor’s liability, they do not share the same legal right. The commonality of interest in “proving or disproving the same facts” is not enough to establish privity. State v. Fritz, supra, 204 Conn. 173.

In reaching this conclusion we are consistent with other courts that have examined this issue. A search of other jurisdictions indicates that the insurer does not stand in the tortfeasor’s shoes; Booth v. Fireman’s Fund Ins. Co., 253 La. 521, 528, 218 So. 2d 580 (1968); and is not in privity with the tortfeasor. Dugas v. Lum-bermens Mutual Casualty Co., 22 Conn. App. 27, 32, 576 A.2d 165 (1990), rev’d, 217 Conn. 631, 587 A.2d 415 (1991); see also Cingoranelli v. St. Paul Fire & Marine Ins. Co., 658 P.2d 863, 869 (Colo. 1983) (general release given tortfeasor in exchange for settlement does not affect no-fault [uninsured motorist] insurance carrier because insurer not in privity with tortfeasor); Jones v. Southern Home Ins. Co., 135 Ga. App. 385, 389, 217 S.E.2d 620 (1975), cert. denied, 424 U.S. 902, 96 S. Ct. 1093, 47 L. Ed. 2d 307 (1976) (no privity of contract between insurer and one who injured its policyholder); Bailey v. Aetna Casualty & Surety Co., 497 S.W.2d 816, 820 (Mo. App. 1973) (plaintiffs insurer not party to litigation giving rise to release nor in privity with defendant tortfeasor); Sparler v. Fireman’s Ins. Co. of Newark, New Jersey, 360 Pa. Super. 597, 605, 521 A.2d 433 (1987) (adopting Cingoranelli and Bailey, underin-sured motorist insurance carrier not in privity with third party tortfeasor); annot., 39 A.L.R.4th 378 (1985); 8C J. Appleman & J. Appleman, Insurance Law and Practice (1981) § 5071, p. 83.

Finally, we recognize the “crowning consideration” in collateral estoppel cases and the basic requirement of privity — that the interest of the party to be precluded must have been sufficiently represented in the prior action so that the application of collateral estoppel is not inequitable. Aetna Casualty & Surety Co. v. Jones, supra, 220 Conn. 306. A trial in which one party contests a claim against another should be held to estop a third person only when it is realistic to say that the third person was fully protected in the first trial. State v. Fritz, supra, 204 Conn. 173. In the first case, Ye’s insurer had limited exposure and did not assert any material issue of fact regarding Ye’s liability. Consequently, there was little or no incentive in litigating against a recovery in excess of that amount and even less in appealing the award. Allstate, on the other hand, with five times the risk, was in a different position with a far greater incentive to litigate. Cf. Aetna Casualty & Surety Co. v. Jones, supra, 220 Conn. 306-307 (defendant’s interest in avoiding life imprisonment in first trial compelling enough to establish fairness in application of collateral estoppel). In deciding the issue of privity under the circumstances of this case, we conclude, therefore, that the relationship between the party to be estopped (Allstate) and the unsuccessful party in the prior litigation (Ye) is not sufficiently close so as to justify the application of the principles of preclusion. Accordingly, we conclude that the trial court improperly invoked the doctrine of collateral estoppel against Allstate.

Ill

Because it may arise again at trial, we address Allstate’s final claim that the trial court incorrectly denied it a setoff for the $20,000 that the plaintiff had received in settlement of his bad faith claim against Patriot General. Specifically, Allstate claims that the trust agreement and the limits of liability provisions of its policy with the plaintiff, as authorized by § 38a-334-6 (d) of the Regulations of Connecticut State Agencies, must be read to include any payments rendered to its insured by another insurance company, regardless of which legal theory has been invoked to require the payment. We disagree.

The following additional facts are necessary to our resolution of this issue. After prevailing in his action against Ye, which resulted in the plaintiff collecting $20,000 in damages, the plaintiff filed a separate action against Patriot General, claiming bad faith, negligence, and violations of the Connecticut Unfair Insurance Practices Act (CUIPA) and the Connecticut Unfair Trade Practices Act (CUTPA). Specifically, the plaintiff alleged that Patriot General: (1) had not acted in good faith when, prior to trial in his action against Ye, it refused the plaintiffs offers to settle for the amount of Ye’s liability coverage under Ye’s policy with Patriot General; (2) had been negligent in its duty to the plaintiff by failing to pay any or all of the judgment awarded to the plaintiff in his action against Ye; (3) had violated CUIPA by having failed to attempt a good faith settlement of the plaintiffs claims in his action against Ye; and (4) had violated CUTPA by systematically having failed to attempt such good faith settlements.

On February 9, 1995, the plaintiff filed a release with the trial court in exchange for which he received a payment of $20,000 from Patriot General. In the release, the plaintiff expressly stated that the $20,000 was being paid as settlement of the negligence, CUIPA and CUTPA claims, and only those claims. The release further stated that although Patriot General was not making any payment to the plaintiff on the bad faith claims, the plaintiff agreed to release those claims as well. The release contained no language connecting it with the plaintiffs earlier action against Ye that had resulted in a $68,867 judgment for the plaintiff.

Allstate argues that the $20,000 paid by Patriot General in settlement of the action in Mazziotti v. Patriot General Ins. Co., supra, Superior Court, Docket No. CV930353278S, should be deducted along with the $20,000 payment the plaintiff received from Patriot General for the judgment in Mazziotti v. Ye, supra, Superior Court, Docket No. CV920330855S, for a total setoff of $40,000. Allstate reasons that, but for Ye’s liability in the first action, the plaintiff would have had no reason to bring the separate action against Patriot General. Allstate cites to its insurance contract with Mazziotti, this court’s decision in American Motorists Ins. Co. v. Gould, 213 Conn. 625, 569 A.2d 1105 (1990), overruled in part on other grounds, Covenant Ins. Co. v. Coon, 220 Conn. 30, 37, 594 A.2d 977 (1991), and the decision of the Appellate Court in Allstate Ins. Co. v. Lenda, 34 Conn. App. 444, 642 A.2d 22, cert. denied, 231 Conn. 906, 648 A.2d 149 (1994), to support its argument that its right of recovery extends beyond payments directly attributable to the plaintiffs injuries. We are not persuaded by Allstate’s arguments, and conclude that Allstate is not entitled to a $20,000 setoff for the money the plaintiff received in his settlement of his claims against Patriot General.

Allstate’s insurance contract, in the trust agreement and limits of liability provisions, provides that Allstate may recover from amounts paid by or on behalf of the tortfeasor or from “the proceeds of any settlement or judgment [the insured] recovers from any responsible party or insurer.” See footnote 5. Although in the trial court Allstate did not offer any law or authority in support of this claim, on appeal it contends that this court and the Appellate Court have interpreted similar language in Gould and Lenda in such a manner as to allow Allstate to claim reimbursement from the settlement proceeds of the plaintiffs action against Patriot General. We disagree.

Gould involved an automobile accident in which four persons were injured. All four received payment from the automobile owner’s liability insurance. Because her damages exceeded the amount of her award, the defendant in that case, Karen Gould, sought further payment from the uninsured motorist provision of that same policy. The trial court determined that, because the payments to Gould were less than the total limits of liability under the uninsured motorist provision, Gould was entitled to recover under that uninsured motorist provision. This court reversed the trial court’s judgment, stating that “[t]he policy provision reducing uninsured motorist limits by payments made in behalf of the tortfeasor, specifically including ‘all sums’ paid under the liability portion of the policy, expressly contemplates that the entire [amount paid to all claimants] is to be subtracted from the . . . uninsured motorist limit . . . .” American Motorists Ins. Co. v. Gould, supra, 213 Conn. 636. The Appellate Court in Lenda stated that references to damages in uninsured motorist policies may include property damage in addition to physical injury. Allstate Ins. Co. v. Lenda, supra, 34 Conn. App. 455.

Neither of these cases supports Allstate’s proposition that any money paid by an insurer, regardless of the legal theory under which such payment is made, is subject to recovery by an insurer that has made payments under its uninsured motorist policy. The central point of these cases, and cases cited therein, is that an uninsured tortfeasor’s liability for damages may extend beyond personal injuries to property damages, and may extend to multiple claimants, in which case those factors must be taken into account when determining the application of the insurer’s uninsured motorist coverage. We are unable to fashion any reasonable interpretation of the relevant case law and regulations so as to include payments made by an insurance company to settle an action based on bad faith, negligence and violations of CUTPA and CUIPA. Such payments bear a less than tangential relationship to the insured’s damages. The payments were made not on behalf of the tortfea-sor, Ye, but on behalf of Patriot General itself, in order to avoid further litigation over its own trade practices. The language of the release filed by the plaintiff in that action is very clear — Patriot General, in return for a payment of $20,000, was released from the claims that, in its dealings with the plaintiff, it had acted negligently and had violated CUTPA and CUIPA. The release contained no reference to the separate action against Ye. Accordingly, the trial court properly declined to include the settlement in the setoff.

The judgment of the trial court is reversed and the case is remanded for a new trial on the issue of damages.

In this opinion the other justices concurred.

BORDEN, J.,

concurring. I agree with and join the majority opinion, except with respect to its substantive discussion of the law of satisfaction of judgments. I agree with the majority that, under the procedural circumstances of this case, the trial court was within its discretion in declining to open the judgment in order to consider the question of the satisfaction of the judgment against the third party tortfeasor and that, accordingly, it is not necessary for us to consider the effect, if any, of that satisfaction of judgment.

I decline, however, to join the rest of the majority’s discussion regarding satisfactions of judgments, insofar as they may or may not apply when the party who has delivered such a document thereafter attempts to recover under his underinsured motorist policy. We have never been confronted with, and therefore have never decided, whether the law of satisfaction of judgments applies, or should be held to apply, to that situation. I see no reason, therefore, to elaborate on the law of satisfaction of judgments in a case, such as this, in which we are specifically not considering the effect, if any, of the satisfaction of judgment previously filed by the plaintiff.

       Specifically, the plaintiff claimed ihat Patriot General had: “(1) failed, in bad faith, to exercise due care and diligence in dealing with [the] plaintiff in Mazziotti v. Ye [supra, Superior Court, Docket No. CV920330855S]; (2) failed, in bad faith, to settle Mazziotti’s claim against Ye within Patriot General’s $20,000 policy limits; (3) failed to satisfy the judgment against Ye; and (4) violated the Connecticut Unfair Insurance Practices Act (CUIPA) [General Statutes § 38a-815 et seq.] and the Connecticut Unfair Trade Practices Act (CUTPA) [General Statutes § 42-110a et seq.].”

       The satisfaction of judgment, filed by the plaintiff in Mazziotti v. Ye, supra, Superior Court, Docket No. CV920330855S, provided as follows: “The plaintiff in the above entitled action hereby states that the judgment entered in the above case has been satisfied by the payment by the defendant of the sum of $29,950.00, of which $950.00 is for costs and $9000.00 is for prejudgment interest from the submission of an offer of judgment by the plaintiff.”

       The terms of the policy upon which the plaintiff relies are consistent with the pertinent controlling legislation.
      General Statutes § 38a-336 provides in relevant part: “Uninsured and underinsured motorist coverage, (a) (1) Each automobile liability insurance policy shall provide insurance, herein called uninsured and underinsured motorist coverage, in accordance with the regulations adopted pursuant to section 38a-334, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom. ...” (Emphasis added.)
      Section 38a-334-6 of the Regulations of Connecticut State Agencies provides in relevant part: “Minimum provision for protection against uninsured motorists
      “(a) Coverage. The insurer shall undertake to pay on behalf of the insured all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured caused by an accident involving the uninsured motor vehicle. . . .” (Emphasis added.)

       The section of the policy regarding Allstate’s consent to sue provides: “If an insured person sues a person believed responsible for the accident without our written consent, we aren't bound by any resulting judgment.”

       In support of its claim to the $40,000 setoff, Allstate relies on two provisions of its policy, the limits of liability provision and the trust agreement. The limits of liability provision of the policy provides in relevant part: “The limits of this coverage will be reduced by: 1. all amounts paid by the owner or operator of the uninsured auto or anyone else responsible. This includes all sums paid under the bodily injury liability coverage of this or any other policy. . . .”
      The trust agreement provision of the policy provides in relevant part: “When we pay any person under this coverage: 1. we are entitled to repayment of amounts paid by us and related collection expenses out of the proceeds of any settlement or judgment that person recovers from any responsible party or insurer. . . .”

       On October 19, 1995, the plaintiff filed a “motion for judgment,” requesting damages in the amount of $68,867, less any credits due under the policy. In a memorandum of law filed in support of the motion, the plaint iff argued that the judgment he obtained in his action against Ye should serve as the measure of damages in this later filed underinsured motorist claim against Allstate. Allstate, in a simultaneously filed memorandum, argued that because it was not in privity with the tortfeasor, and because the plaintiff had failed to obtain its consent to bring the action against Ye, the doctrine of collateral estoppel did not apply to bind Allstate on the issue of damages. No evidence was introduced by either party, and shortly thereafter, the trial court issued its memorandum of decision granting the plaintiff s motion. Although the record does not reveal the catalyst for this procedurally unusual turn of events, in the absence of a transcript to provide an explanation we assume that the issue of collateral estoppel surfaced during a pretrial hearing at which time the trial court ordered simultaneous briefs on the issue.

       This amount reflects the court’s conclusion that, of the $68,867 liability, Allstate was entitled to credit for collateral source payments received by the plaintiff in the amount of $24,492.71.

       Practice Book § 204A provides: “Any motions which would, pursuant to Sec. 4009, delay the commencement of the appeal period until all such motions have been decided, and any motions which, pursuant to Sec. 4009, would toll the appeal period and cause it to begin again after all such motions have been decided, shall be filed simultaneously insofar as such filing is possible, and shall be considered by the judge who rendered the underlying judgment or decision. The party filing any such motion shall set forth the judgment or decision which is the subject of the motion, the name of the judge who rendered it, the specific grounds upon which the party relies, and shall indicate on the bottom of the first page of the motion that such morion is a Sec. 204A motion. The foregoing applies to motions to reargue decisions that are final judgments for purposes of appeal, but shall not apply to motions under Secs. 319 and 204B.”
      Practice Book § 326 provides: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months of the entry of judgment. The parties may waive the provisions of this paragraph or otherwise submit to the jurisdiction of the court.
      “Upon the filing of a motion to open or set aside a civil judgment, except a judgment in a small claims or juvenile matter, the moving party shall pay to the clerk the filing fee prescribed by statute unless such fee has been waived by the court.”

       Because Allstate did not object to the trial court’s granting of the plaintiffs first motion for summary judgment, which pertained to liability only, the sole issue before us on appeal is whether Allstate is bound by the judgment as to damages.

       Section 38a-334-6 (l)) of the Regulations of Connecticut State Agencies provides: “Arbitration. The insurance may provide but not require that the issues of liability as between the insured and the uninsured motorist, and the amount of damages, be arbitrated. The insurer may provide against, being bound by any judgment against the uninsured motorist.”

       In light of our determination on the issue of privity, and despite the urging of the Connecticut Trial Lawyers Association in its amicus brief to declare the consent provision void as against public policy, we need not address the issue of the permissible scope of the consent to sue provision.

       As we have recognized, the concept of privity has moved away from the conventional and narrowly defined meaning of mutual or successive relationships to the same rights or property. It now signifies a relationship between one who is a party of record and another who is a nonparty, but is sufficiently close to mandate the application of res judicata or collateral estoppel. See State v. Fritz, supra, 204 Conn. 173.

       Because we have concluded that Allstate is not bound by the judgment in the plaintiffs action against Ye and that a new trial is required, we need not address the application of § 52-192a.

       See footnote 5.

       Section 38a-334-6 (d) of the Regulations of Connecticut State Agencies provides in relevant part: “Limits of liability. The limit of the insurer’s liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of section 14-112 of the general statutes, except that the policy may provide for the reduction of limits to the extent that damages have been (1) paid by or on behalf of any person responsible for the injury . . . .”

         Mazziotti v. Patriot General Ins. Co., supra, Superior Court, Docket No. CV930353278S.

       General Statutes § 38a-815 et seq.

       General Statutes § 42-110a et seq.


text:
    STATE LIBRARY v. FREEDOM OF INFORMATION COMMISSION ET AL. CITY OF NORWICH ET AL. v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (15522)
    (15523)
    Borden, Norcott, Palmer, McDonald and Peters, Js.

      Argued March 27
    officially released May 13, 1997

      Linsley J. Ba/rbato, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Ralph E. Urban and Bernard F. McGovern, assistant attorneys general, for the appellant in Docket No. 15522 (plaintiff state library).

      Marc S. Mandell, for the appellants in Docket No. 15523 (plaintiff city of Norwich et al.).

      Victor R. Perpetua, appellate attorney, with whom, on the brief, was Mitchell W. Pearlman, commission counsel, for the appellee in both cases (named defendant).

      Jane Richardson, with whom, on the brief, was James C. McGuire, for the appellees in both cases (defendant Maria T. Hileman et al.).
   Opinion

PETERS, J.

Under both the general provisions of the Uniform Administrative Procedure Act; General Statutes § 4-183 (a); and the specific provisions of the Freedom of Information Act; General Statutes § l-21i (d); only a person aggrieved by a final decision of the defendant freedom of information commission (commission) may appeal from that decision to the trial court. The sole issue in these consolidated appeals is whether the plaintiffs, the Connecticut state library (state library), the city of Norwich, Richard Abele and James McGeo-wan, have proven that they were each aggrieved by a decision of the commission ordering the release of certain documents to the defendant Maria T. Hileman, a reporter employed by the defendant Day Publishing Company, the publisher of a New London area newspaper. The trial court, Hurley, J., found that the plaintiffs had demonstrated their aggrievement and sustained their appeals. The defendants appealed to the Appellate Court, which concluded that the trial court should have dismissed the plaintiffs’ appeals on the ground that the plaintiffs had failed to establish their aggrievement. State Library v. Freedom of Information Commission, 41 Conn. App. 641, 648, 677 A.2d 470 (1996). Having granted, in identical terms, the plaintiffs’ petitions for certification, we now reverse the judgment of the Appellate Court.

The relevant facts are described in the opinion of the Appellate Court. “On September 30, 1964, the Norwich city council voted to establish a special five member committee from among the members of the council. The committee was authorized to investigate the official conduct of the Norwich police department and the officers and members thereof, pursuant to the Norwich city charter. The committee was established in response to allegations that complaints of misconduct by members of the police department had been reported to the chief of police and that no action had been taken by the chief to resolve the complaints.

“The committee began hearings in October, 1964, and concluded the hearings in November, 1964. A total of fifty-four persons testified under oath at the hearings. Approximately one half of the witnesses were members of the Norwich police department. Some of the testimony related to the behavior of certain members of the Norwich police department. The testimony established that certain officers drank alcoholic beverages prior to going on duty and while on duty. Additional testimony concerned the administration of the Norwich police department. Witnesses testified that defects existed concerning the safeguarding of keys to commercial buildings left in the possession of the police, that there were inadequate police patrols in the city at night, and that the rules and regulations of the department were in a book dated 1898 that had not been updated since that time. It was established that the rules and regulations book contained a list of livery stables and instructions for lighting gas lights. Moreover, the first aid section included bloodletting as a corrective measure. Further, testimony established that no training program existed for new officers nor were any continuing education programs in place for officers. Finally, testimony revealed that the detective division was understaffed, that the police department operated in much the same manner as it had twenty to fifty years prior to the hearings, and that the morale of the department was low.

“In March, 1966, the Norwich city council voted that the transcripts of the hearings before the special committee be held for a period of six years and then destroyed in accordance with the provisions of General Statutes (Rev. to 1966) § 7-109. In the fall of 1972, the city of Norwich sought permission from the public records administrator to destroy the hearing transcripts. See General Statutes § (Rev. to 1972) § 7-109. The state archivist and the public records administrator both agreed that the records were of sufficient historical significance to the state as to justify their permanent retention. Accordingly, the request of the city to destroy the transcripts was denied. As an alternative, the public records administrator suggested that the transcripts could be transferred to the state library, and that such transfer could be made under seal if disclosure of the contents would adversely affect the public security or financial interests of the state or the reputation or character of any person. The administrator suggested that under such circumstances, the state library would undertake to respect and preserve the confidentiality of the records for an agreed upon period of time. In April, 1973, eighteen volumes of transcripts of testimony taken by the special committee were transferred to the care of the state library to be held under seal and preserved for fifty years.

“In December, 1992, [Hileman] . . . requested that the archivist of the state library release copies of the transcripts of the testimony taken before the special committee. Hileman claimed that although the documents were sealed in 1973, there was no justification under the Freedom of Information Act for continuing to keep them sealed. In January, 1993, the state archivist notified Hileman that her request was denied. Thereafter, Hileman and the Day Publishing Company filed a complaint with the commission. The city of Norwich, the Norwich police department, Richard Abele and James McGeowan were granted intervenor status.

“A commissioner held a hearing, and Hileman, the state archivist, Abele and McGeowan testified. In August, 1993, the commissioner issued a proposed finding to the parties that provided for disclosure of the transcripts at issue subject to certain redactions being made. In September, 1993, the proposed finding was considered by the commission. The state library, the city of Norwich, the Norwich police department, Abele and McGeowan all objected to the proposed finding. The commission tabled the proposed finding and remanded the case to the commissioner for reconsideration.

“In October, 1993, the matter was again considered by the commission. Over the continuing objection of the state library, the city of Norwich, the Norwich police department, Abele and McGeowan, the commission voted to adopt the commissioner’s proposed finding with certain limited modifications that were proposed by the commissioner. Thereafter, the commission issued its final decision.

“The state library, the city of Norwich, the Norwich police department, Abele and McGeowan . . . appealed to the Superior Court from the commission’s decision. The court found that each plaintiff was aggrieved by the decision of the commission, and the court sustained the plaintiffs’ appeals. The commission, Hileman, and the Day Publishing Company (collectively the defendants) appealed to [the Appellate Court].” State Library v. Freedom of Information Commission, supra, 41 Conn. App. 643-46.

Concluding that the trial court’s finding of aggrievement was improper, the Appellate Court reversed the trial court’s judgments. The Appellate Court reviewed the established case law that makes a showing of aggrievement a jurisdictional prerequisite to an administrative appeal. Id., 646-48. It then examined the record and the proceedings before the trial court with respect to the plaintiffs’ proof of aggrievement in these appeals. It observed that the trial court had “failed to take evidence with respect to the plaintiffs’ claimed aggrievement. Prior to hearing the appeals, the only source of information that the court had before it regarding any possible aggrievement was that contained in the administrative record.” Id., 648. The Appellate Court held that “a party may not properly rely on the administrative record to establish the fact of aggrievement, but instead, that party has the burden of proving aggrievement in the trial court.” Id. Because, in the view of the Appellate Court, the trial court had before it no competent evidence upon which to base a finding that the plaintiffs were aggrieved, the Appellate Court determined that “the trial court was without jurisdiction to hear” the plaintiffs’ claims. Id.

Without disputing that the trial court failed to hold an evidentiary hearing on aggrievement, the plaintiffs nevertheless seek reversal of the judgment of the Appellate Court on two grounds, one procedural and one substantive. As a matter of procedure, they claim that, if the necessary facts can be found upon examination of the administrative record, the pleadings and the briefs of the parties, then aggrievement may be proven without an evidentiary hearing by the trial court. As a matter of substance, they claim that the record in these appeals supports the trial court’s finding of aggrievement. We agree with both of the plaintiffs’ claims.

I

For guidance regarding the procedural requirements for a showing of aggrievement in an administrative appeal, we begin with two principles that are well established in our case law. It is undisputed that proof of aggrievement is a jurisdictional prerequisite for an administrative appeal. See, e.g., Rose v. Freedom of Information Commission, 221 Conn. 217, 223-24, 602 A.2d 1019 (1992); Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). It is also undisputed, as the cases relied upon by the Appellate Court indicate, that an administrative record may be insufficient to establish aggrievement, as a matter of fact, when the record does not contain evidence sufficient to support such a claim. See, e.g., Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 498, 400 A.2d 726 (1978); Nader v. Altermatt, 166 Conn. 43, 59, 347 A.2d 89 (1974); Hughes v. Town Planning & Zoning Commission, 156 Conn. 505, 508, 242 A.2d 705 (1968).

The question that we have not expressly addressed previously is whether an administrative record is always insufficient, as a matter of law, to satisfy a plaintiffs burden to prove aggrievement. We impliedly came to the contrary conclusion, however, in Kelly v. Freedom of Information Commission, 221 Conn. 300, 603 A.2d 1131 (1992). In Kelly, we looked to the administrative record in order to determine whether the chief state’s attorney was aggrieved by a decision of the commission requiring the disclosure of an arrest report during the pendency of a criminal prosecution. Id., 310-14. We now hold expressly that, without an evidentiary hearing in the trial court, a plaintiff may prove aggrievement by relying on facts established in the record as a whole, including the administrative record. See Hughes v. Town Planning & Zoning Commission, supra, 156 Conn. 508 (aggrievement may appear “on the face of the record”).

Our conclusion finds strong statutory support in § 4-183 (i), which was amended in 1988 as part of a comprehensive revision of the Uniform Administrative Procedure Act. See Public Acts 1988, No. 88-317, § 23. Subsection (i) provides in relevant part: “The appeal shall be . . . confined to the record. If . . . facts necessary to establish aggrievement are not shown in the record, proof limited thereto may be taken in the court. . . .” (Emphasis added.) The conjunction, in one subsection, of both “shall” and “may” indicates that the legislature intended to attach different consequences to each of these statutory instructions about the procedures governing an administrative appeal. See, e.g., Angelsea Productions, Inc. v. Commission on Human Rights & Opportunities, 236 Conn. 681, 694, 674 A.2d 1300 (1996). We are persuaded that the legislature has unambiguously manifested its intention that administrative appeals ordinarily are to be decided on the basis of the record. See Blaker v. Planning & Zoning Commission, 219 Conn. 139, 146, 592 A.2d 155 (1991). Pursuant to § 4-183 (i), proof of aggrievement requires an evidentiary hearing only in the absence of a sufficient administrative record.

As a matter of procedure, therefore, the Appellate Court’s rulings cannot be reconciled with either the reasoning o f Kelly v. Freedom of Information Commission, supra, 221 Conn. 300, or the text of § 4-183 (i). The judgments of the trial court were not improper because of that court’s failure to hold an evidentiary hearing with respect to the plaintiffs’ aggrievement. The judgments of the Appellate Court must, therefore, be reversed.

II

As a matter of substance, the Appellate Court did not reach the merits of the trial court’s finding that the plaintiffs had established their aggrievement. In the interests of judicial economy, and because this substantive question has been fully briefed, we have decided to resolve it ourselves. See Almeida v. Liberty Mutual Ins. Co., 234 Conn. 817, 826, 663 A.2d 382 (1995). We conclude that the record supports the trial court’s finding that the plaintiffs have proven their aggrievement.

In appeals pursuant to the Freedom of Information Act, aggrievement is determined in accordance with a twofold test. See General Statutes § 1-2 li (d). This test requires a showing of: “(1) a specific personal and legal interest in the subject matter of the [commission’s] decision; and (2) a special and injurious effect on this specific interest.” Board of Pardons v. Freedom of Information Commission, 210 Conn. 646, 649, 556 A.2d 1020 (1989); Kelly v. Freedom of Information Commission, supra, 221 Conn. 308; Rose v. Freedom of Information Commission, supra, 221 Conn. 230; Zoning Board of Appeals v. Freedom of Information Commission, 198 Conn. 498, 502, 503 A.2d 1161 (1986); Local 1303 & Local 1378 v. Freedom of Information Commission, 191 Conn. 173, 176, 463 A.2d 613 (1983). We agree with the trial court that each of the plaintiffs has met this test.

The state library and the city of Norwich are aggrieved because the commission’s disclosure order potentially impaired their rights under a contract requiring the documents in issue to remain sealed. See Kelly v. Freedom of Information Commission, supra, 221 Conn. 311 (test for aggrievement is whether personal rights are affected). Further, if the order of the commission were to be disobeyed, library directors would be exposed to the risk of criminal and civil sanctions, an exposure that we have held is sufficient to establish aggrievement. See Board of Pardons v. Freedom of Information Commission, supra, 210 Conn. 650.

Abele and McGeowan are aggrieved because the commission’s order requires the disclosure of documents relating to an investigation in which they were directly involved. See Rose v. Freedom of Information Commission, supra, 221 Conn. 231. We are not persuaded to the contrary by the argument of the defendants that the commission’s partial redaction of the contents of these documents absolutely ensures that Abele and McGeowan are not aggrieved. “Aggrievement is established if there is some possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.” (Emphasis added; internal quotation marks omitted.) Id., 230; see also United Cable Television Service Corp. v. Dept. of Public Utility Control, 235 Conn. 334, 343, 663 A.2d 1011 (1995). For the purpose of establishing aggrievement, police officers have a specific personal and legal interest in disclosures that may, even in redacted and indirect ways, contain evaluations of the past performance of their public duties. Kelly v. Freedom of Information Commission, supra, 221 Conn. 310-14.

Our conclusion that the plaintiffs have established their aggrievement resolves only one of the issues that the defendants raised in their appeals to the Appellate Court. See State Library v. Freedom of Information Commission, supra, 41 Conn. App. 642-43 (describing substantive issues raised). These appeals, therefore, must be remanded to the Appellate Court for review of the decision of the trial court sustaining the plaintiffs’ appeals on their merits.

The judgments of the Appellate Court are reversed and the cases are remanded to that court for consideration of the remaining issues in the appeals.

In this opinion the other justices concurred.

       General Statutes § 4-183 (a) provides in relevant part: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. . . .”

       General Statutes l-21i (d) provides in relevant part: “Any party aggrieved by the decision of said commission may appeal therefrom, in accordance with the provisions of section 4-183. . . .”

       After obtaining a stay of the commission’s order, the plaintiffs challenged that order in two separate appeals to the trial court, one filed by the state library, and the other filed by the city of Norwich, Abele and McGeowan. The Norwich police department also joined in the latter appeal. Upon motion, the trial court, Teller, J., consolidated the two appeals.

         The defendants brought two separate appeals to the Appellate Court, one filed by Hileman and the Day Publishing Company, and the other filed by the commission. The Appellate Court consolidated these two appeals.

       Thu plaintiffs brought two separate petitions for certification to appeal, one filed by the state library in Docket No. 15522, and the other filed by the city of Norwich, Abele and McGeowan in Docket No. 15523. We granted both petitions limited to the following issue: “In the circumstances of this case, did the Appellate Court properly conclude that the plaintiffs failed to prove their aggrievement?” State Library v. Freedom of Information Commission, 239 Conn. 903, 904, 682 A.2d 1013 (1996). Although the Norwich police department was a party to the appeals brought to both the trial court and the Appellate Court; see footnote 3; it did not join in either petition for certification to this court and is, therefore, not a party to the present appeals.

       General Statutes (Rev. to 1966) § 7-109 provided in relevant part: “Any official, board or commissioner of a municipality ■ • • may, with the approval of the administrative head of such municipality and of the state examiner of public records, destroy any document in his or its custody relating to any matter which has been disposed of and of which no record is required after six years from the date of such document. . . .”

       At the time of the special committee hearings, Abele and McGeowan were members of the Norwich police department. State Library v. Freedom, of Information Commission, supra, 41 Conn. App. 645 n.3.

       The 1988 amendment to § 4-183 (i) added the language providing that the trial court may take additional evidence in those cases in which the “facts necessary to establish aggrievement are not shown in the record . . . .” Public Acts 1988, No. 88-317, § 23.

       Although the defendants contend that no contract ever existed between the city of Norwich and the state library, we cannot ignore, at least for purposes of determining aggrievement, the trial court’s explicit and uncontradicted finding that those parties had “entered into an agreement” pursuant to which the library would store the relevant documents.