author: BORDEN, J.

text:
    WILLIAM NORTHROP ET AL. v. ALLSTATE INSURANCE COMPANY
    (SC 15969)
    Callahan, C. J., and Borden, Katz, Palmer and McDonald, Js.

      Argued October 1
    officially released December 1, 1998

      Linda L. Morkan, with whom were Daniel F. Sullivan and, on the brief, Patricia E. McCooey, for the appellant (defendant).

      Frank J. Raio, with whom was Jon D. Biller, for the appellees (plaintiffs).
   Opinion

BORDEN, J.

The defendant, Allstate Insurance Company, appeals from the judgment of the trial court in favor of the plaintiffs, William Northrop and Cleo Northrop, in their action for the balance due under their homeowners’ insurance policy covering their dwelling. The defendant claims that the trial court improperly awarded the plaintiffs the withheld depreciation portion of their fire insurance coverage and prejudgment interest on that amount. We disagree with the defendant’s first claim, and agree with its second claim only with regard to the date from which the trial court calculated the interest due. We therefore reverse the judgment in part and remand the case to the trial court for a recalculation of the interest due.

The plaintiffs brought this action against the defendant claiming breach of contract based on the defendant’s failure to pay the withheld depreciation portion of their fire insurance coverage, arising out of a fire loss that occurred on January 3, 1992. The trial court determined that the plaintiffs were entitled to the withheld depreciation in the amount of $10,315.90, and awarded interest on that sum in the amount of $4401.49, from May 12, 1993, the date of a certain release from the plaintiffs to the defendant. This appeal followed.

The following facts axe not in dispute. The defendant was the insurer on a homeowner’s policy covering the plaintiffs’ home in East Haven when a fire damaged the home on January 3, 1992. The fire insurance portion of the policy included replacement cost coverage, for which the plaintiffs had paid a premium over and above the premium for actual cash value coverage. The plaintiffs and the defendant reached an agreement, subsequently reflected in a sworn proof of loss statement submitted by the plaintiffs and accepted by the defendant, that the replacement cost for the fire loss was $74,724, and the actual cash value of the loss was $64,408.10. The difference between the two figures, $10,315.90, was then broken down in the proof of loss into a policy deductible of $250 and withheld depreciation of $10,065.90, which is the focus of the dispute in this case.' It is referred to as “withheld” depreciation because, under the terms of the policy, the defendant was not obligated to pay it until the plaintiffs actually completed the repair or replacement.

The pertinent provisions of the insurance policy provided: “Payment for covered loss to building structures insured under the Dwelling Protection coverage will be by one of the following methods: a) Replacement Cost. This means there will not be a deduction for depreciation. Payment will not exceed the smallest of the following amounts: 1) the replacement cost of that part of the building structure damaged for equivalent construction and use on the same premises; 2) the amount actually and necessarily spent to repair or replace the damaged building structure; or 3) [t]he limit of liability applicable to the building structure. We will not pay more than the actual cash value of the damaged building structure until the repair or replacement is completed, b) Actual Cash Value. This means there may be a deduction for depreciation. If you do not repair or replace the damaged building structure, payment will be on an actual cash value basis, not to exceed the limit of liability shown on the declarations page for Coverage A — Dwelling Protection.” Under these provisions, therefore, the defendant was obligated to pay the plaintiffs the actual cash value of the loss, irrespective of whether they repaired or replaced the damage. If they did so, however, the defendant was obligated to pay the plaintiffs the withheld depreciation, when “the repair or replacement [was] completed.”

It was also undisputed that, after the fire loss, the plaintiffs engaged a contractor, A. A. McNamara and Sons, Inc. (McNamara), to repair the damage. Their agreement was evidenced by four documents: (1) an authorization, dated January 9, 1992, signed by Cleo Northrop, to McNamara “to commence repairs to [the] property . . . which was damaged by fire on. . . [January 3, 1992]”; (2) a four page written proposal, dated September 26, 1992, from McNamara to the plaintiffs, specifying the work to be done; (3) a document purporting to be a “Home Improvement Contract,” dated October 2, 1992, between McNamara and the plaintiffs, for work specified as “See Attached List,” but to which no list was attached, for a total price of $74,724; and (4) a “Revised” five page proposal, dated June 7, 1993, specifying the work to be done.

The defendant paid the plaintiffs the actual cash value of $64,408.10 in two installments: (1) $5000 on July 8, 1992, and (2) $59,408.10 on May 27, 1993. Further, on May 12,1993, after the negotiations over the actual cash value and replacement cost figures had been completed, the plaintiffs executed a release to the defendant of all claims, except the potential claim for withheld depreciation. Between May, 1993, and March, 1994, the plaintiffs paid McNamara a total of $63,143.66. After the defendant refused to pay the plaintiffs the withheld depreciation, this action ensued.

As reflected in the trial court’s memorandum of decision, there were four areas of dispute at trial. First, the defendant claimed that the contract between the plaintiffs and McNamara was invalid because it did not comply with the Home Improvement Act (act), General Statutes § 20-418 et seq. The court rejected this claim as a matter of law, ruling that the act was for the benefit of consumers and could not be raised by the defendant in an action brought against it by its insured.

Second, the defendant claimed that the various documents comprising the alleged contract between the plaintiffs and McNamara were vague and so imperfectly drafted as to suggest that the plaintiffs and the contractor were participating in a series of pretenses, all designed to defraud the defendant. Noting that certain actions would remain unexplained because the employee of McNamara who had drafted the documents had died before the trial, the court specifically found that, although the documentation was lacking in some respects, the documents constituting the contract between the plaintiffs and McNamara were sufficient because they described the work to be performed and the price to be paid. The court also found that the plaintiffs did not contest the validity of the documents, and that they agreed that the contractor had done its job properly and was entitled to payment. Thus, the court rejected the defendant’s claim that “the plaintiffs and the contractor were involved in a conspiracy of some sort to collect the balance of the claim.”

Third, the defendant claimed that, as a matter of interpretation of the insurance policy, the plaintiffs were not entitled to the withheld depreciation. This claim was based on the policy provision limiting the payment to “the amount actually and necessarily spent to repair or replace the damaged building structure . . . .” (Emphasis added.) In the defendant’s view, the word “spent” as used in this provision means that the plaintiffs were required actually to lay out the money and to pay for the completion of the job represented by the withheld depreciation before the defendant would become obligated to reimburse them for it, and that, correspondingly, incurring a valid debt for that work, albeit completed, was insufficient. Thus, the defendant claimed that, although the plaintiffs may have incurred a debt to McNamara for the completion of the repair and replacement of the loss representing the withheld depreciation, the plaintiffs were not entitled to the withheld depreciation because they had not “actually and necessarily spent” the money to repair or replace the loss. The trial court rejected this argument, and held that the incurring of a valid debt, that is, becoming obligated for the completed work, was sufficient to meet this condition of the insurance policy.

Fourth, relying on the insurance policy provision that the defendant was not obligated to pay more than the actual cash value “until the repair or replacement is completed,” the defendant claimed that because, as a factual matter, the replacement work was not completed, the plaintiffs were not entitled to withheld depreciation. The defendant claimed that approximately $20,000 of work had not been done. The plaintiffs’ position was that the work was completed. This was a disputed factual matter, and the trial court “conclude [d] that [the] plaintiffs have sustained their burden on this disputed issue. The defendant has not presented sufficient evidence to show that only $54,000 worth of work was done toward correcting the fire damage.”

Regarding the plaintiffs’ claim for prejudgment interest, the trial court found that the plaintiffs were entitled to such interest based on the amount of withheld depreciation. The trial court selected May 12, 1993, the date of the execution of the release by the plaintiffs, as the date from which the interest was due and payable, and calculated the interest accordingly from that date to the date of the memorandum of decision.

I

The defendant’s first claim on appeal is that, under the plain meaning of the insurance policy language, the plaintiffs were not entitled to the withheld depreciation because they had not “spent” the money for the portion of the repair or replacement represented by the depreciation. The defendant argues that, under the dwelling protection provision of the policy, the limit on the defendant’s liability to “the amount actually and necessarily spent to repair or replace the damaged building structure”; (emphasis added); requires that the plaintiffs actually have paid out the money first, and does not include the situation in which the plaintiffs incurred a valid debt for the repair or replacement. The defendant supports this argument by reference to Webster’s dictionary definition of “spend” as “pay out” or “disburse.” Webster’s New World Dictionary (Third College Ed. 1988); see also Webster’s Third New International Dictionary (defining “spend” as “to distribute or consume in payment or expenditure: pay out: expend, disburse”). We disagree, and conclude that the trial court properly interpreted the insurance policy provision as including the incurring of a valid debt within the meaning of “spend.”

Although we have on occasion looked to dictionaries in order to give meaning to words used in a legal context, particularly when that context indicates that the words were used in their ordinary sense, that does not mean, as the defendant’s argument suggests, that a dictionary gives the definition of any word. A dictionary is nothing more than a compendium of the various meanings and senses in which words have been and are used in our language. A dictionary does not define the words listed in it in the sense of stating what the words mean universally. Rather, it sets out the range of meanings that may apply to those words as they are used in the English language, depending on the varying contexts of those uses. Thus, the question in this case is not whether the dictionary defines “spend” as “pay out,” which it does, of course; the question is whether that one definition is the only appropriate one to assign to the word as it is used in the policy. We conclude that it is not.

Another meaning of “spend” as revealed by the dictionary is “the general term indicating a paying out of money or, sometimes, incurring obligations calling for its being paid (spend a hundred dollars for a coat) . . . .” (Emphasis in original.) Webster’s Third New International Dictionary. Thus, as the dictionary recognizes, in ordinary parlance one might well say “I spent a hundred dollars for this coat,” although the buyer bought the coat on credit rather than for cash. The word “spend” as used in the insurance policy provision at issue includes this meaning of the word.

First, where there are two plausible interpretations of insurance policy language, the court will ordinarily select that interpretation that favors the insured over the insurer. Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 382, 713 A.2d 820 (1998). Second, it would defy the reasonable expectations of the insured, and in many cases place undue burdens on him, to require the insured to finance the withheld depreciation portion of the repair or replacement of a fire loss in order to secure the replacement cost coverage for which an additional premium had been paid. Indeed, if the insured first were required to pay out the money for the repair or replacement, rather than merely to incur a valid debt for the completed repair, in a case in which the damaged building was quite old and the loss extensive, the withheld depreciation could be so great as to make the replacement cost coverage largely illusory. We will not interpret insurance policy language to yield such a result.

We are not persuaded by the authorities or policy argument of the defendant to the contrary. Neither of the cases on which the defendant relies for its interpretation of the term “spend”; see Kolls v. Aetna Casualty & Surety Co., 503 F.2d 569 (8th Cir. 1974); Estes v. State Farm Fire & Casualty Co., 358 N.W.2d 123 (Minn. App. 1984), modified on other grounds, 365 N.W.2d 769 (Minn. 1985); interprets the term “spend” in a replacement cost coverage provision to exclude incurring a valid debt. Moreover, we are unable to find any case that does so.

The defendant argues that this interpretation is necessary in order to guard against a “moral hazard”: “If the insurer pays the insured for replacement cost and the insured chooses not to rebuild the property, the insured will realize a profit on his fire loss.” Although that is certainly a rational explanation for the insurance policy provision requiring the insured to complete the repair or replacement before the insurer becomes obligated to pay the withheld depreciation; see, e.g., Steiner v. Middlesex Mutual Assurance Co., 44 Conn. App. 415, 432 n.15, 689 A.2d 1154 (1997) (recognizing authorities for proposition that “ ‘fire policy provisions precluding recovery of replacement cost until replacement is complete are reasonable as protection against “the moral hazard,” and enforceable’ ”(; it does not require the further, extraordinary requirement that the insured actually pay out the money for the replacement before seeking replacement cost coverage.

II

The defendant next claims that, even if incurring a debt is sufficient, to comply with the requirement that the money actually be spent, the debt that the plaintiffs incurred was not a valid and enforceable obligation because: (1) the conduct of the plaintiffs and McNamara indicated that they did not view the contract as a legitimate obligation; and (2) the contract between them did not comply with the act. We disagree.

The first aspect of this claim ignores contrary factual findings of the trial court for which there was ample supporting evidence. The court found that the contract documents were sufficient, that the plaintiffs did not contest their terms, and that they agreed that McNamara had performed the contract and was entitled to payment. The court also found that there was no fraudulent scheme between the plaintiffs and McNamara, at the expense of the defendant, regarding the contract, its performance and payment therefor.

The second aspect of this claim is unpersuasive as a matter of law. The purpose of the act is “to promote understanding by the consumer, to ensure his ability to make an informed decision and to protect him from substantial work by an unscrupulous contractor.” Habetz v. Condon, 224 Conn. 231, 239, 618 A.2d 501 (1992). It is true that compliance with the act is mandatory in order for a contractor to recover on a home improvement contract. Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 680, 657 A.2d 1087 (1995). That does not mean, however, that the noncomplying contractor is not entitled to payment when the homeowner, for whose benefit the act’s prophylactic provisions were enacted, does not seek the protection of the act, and agrees that the contractor has done the work and should be paid. The act is for the benefit of the consumer, and compliance with its terms may be waived by the consumer, either explicitly or by nonassertion. Thus, the defendant, as the plaintiffs’ insurer, cannot interpose noncompliance with the act as a defense to its own insured’s claim for replacement cost coverage.

Ill

The defendant next claims that the trial court improperly shifted the burden of proof on the plaintiffs’ breach of contract claim to the defendant. This claim is without merit.

In rejecting the defendant’s claim at trial that the replacement work in fact had not been completed, and that approximately $20,000 worth of the work necessary to repair or replace the loss had not been done, the trial court stated: “Considering all the evidence and the explanations offered, the court concludes that [the] plaintiffs have sustained their burden on this disputed issue. The defendant has not presented sufficient evidence to show that only $54,000 worth of work was done toward correcting the fire damage.” The defendant focuses on the second sentence of that quoted language, but ignores the first sentence. The language of the first sentence, which states that the “plaintiffs have sustained their burden on this disputed issue,” adequately makes clear that the court recognized that the plaintiffs had the burden to establish compliance with the conditions of the contract, and that the court required them to meet that burden. ***6

IV

The defendant’s final claim is that the plaintiffs were not entitled to prejudgment interest and that no remand is appropriate because (1) the date selected by the trial court for when the money became due and payable to the plaintiffs was improper, and (2) there was no evidence of a valid alternate date. We agree that the date that the court selected was improper. We disagree, however, that there was no evidence from which the court could have selected a proper date. We conclude, therefore, that a remand is appropriate in this case.

Pursuant to General Statutes § 37-3a, prejudgment interest is awarded in the discretion of the trial court “to compensate the prevailing party for a delay in obtaining money that rightfully belongs to him.” Neiditz v. Morton S. Fine & Associates, Inc., 199 Conn. 683, 691, 508 A.2d 438 (1986). The detention of the money must be determined to have been wrongful. Sears, Roebuck & Co. v. Board of Tax Review, 241 Conn. 749, 763,699 A.2d 81 (1997). Its detention can only be wrongful, however, from and after the date on which the court, in its discretion, determines that the money was due and payable. Foley v. Huntington Co., 42 Conn. App. 712, 740, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996).

The trial court determined in its discretion that the plaintiffs were entitled to prejudgment interest, and the defendant does not challenge that discretionary determination. The May 12, 1993 date selected by the trial court for the beginning of the calculation of the interest period — the date on which the plaintiffs executed the release of all claims except the potential claim for withheld depreciation — however, was improper. On that date, the money for the withheld depreciation was not due and payable because the repair and replacement had not yet been completed.

Contrary to the defendant’s argument, however, there was evidence from which the trial court could have determined a proper date for the beginning of the calculation of prejudgment interest. As the plaintiffs pointed out, the defendant’s claim adjuster visited the plaintiffs’ home in December, 1993, after the completion of the repairs. This would have been an appropriate date from which to calculate when the money was due and payable by the defendant to the plaintiffs.

The judgment is reversed in part and the case is remanded to the trial court with direction to correct the amount of the judgment for the withheld depreciation to $10,065.90, and to recalculate the prejudgment interest from December, 1993.

In this opinion the other justices concurred.

       The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

       The plaintiffs also claimed a bad faith failure to pay by the defendant, and violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes § 38a-815 et seq. The plaintiffs withdrew the CUTPA and CUIPA claims prior to trial. The trial court found for the defendant on the bad faith claim, and the plaintiffs do not challenge that finding on appeal.

       In general terms, and as reflected in the insurance policy at issue in this case, the actual cash value of a fire loss in a case such as this is the cost of repairing or replacing the loss, less depreciation. See Steiner v. Middlesex Mutual Assurance Co., 44 Conn. App. 415, 431-34, 689 A.2d 1154 (1997).
      By contrast, replacement cost of a fire loss in a case such as this is the actual cost of repairing and replacing the loss, without a deduction for depreciation. As explained in the defendant’s brief, the depreciation “refers to that sum which represents the decrease in value of the damaged property from the time of its construction until the time of the loss.” Thus, as further explained by the defendant, replacement cost coverage “allows an insured to recover not only the actual cash value of the policy, but also the estimated depreciation of the property. In effect, replacement cost coverage goes beyond making the insured whole, giving him a new dwelling rather than the ‘used’ one which was damaged.” It also relieves the homeowner, however, of the obligation to fund the depreciation portion of the loss and shifts that obligation to the insurer, a benefit for which the homeowner pays an additional premium. Typically, as reflected in the insurance policy in this case, the insurer does not become obligated to pay the depreciation portion of the loss until the homeowner has actually made the repair or replacement. Steiner v. Middlesex Mutual Assurance Co., supra, 44 Conn. App. 432 n.15.

       Although the trial court rendered judgment for the plaintiffs in the amount of $10,315.90, purportedly representing the withheld depreciation, the proof of loss and the undisputed facts make it clear that the correct amount of the withheld depreciation is $10,065.90. Accordingly, on remand, the judgment should be corrected to reflect the correct amount.

       There is no dispute that the claims in this case were within the limits of liability of the insurance policy.

       Moreover, to the extent that the trial court’s language was unclear or ambiguous on this question, it was incumbent on the defendant, as the appellant, to secure an articulation from the trial court. Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 53, 717 A.2d 77 (1998). The defendant did not do so.

       General Statutes § 37-3a provides: “Rate recoverable as damages. Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable. Judgment may be given for the recovery of taxes assessed and paid upon the loan, and the insurance upon the estate mortgaged to secure the loan, whenever the borrower has agreed in writing to pay such taxes or insurance or both. Whenever the maker of any contract is a resident of another state or the mortgage security is located in another state, any obligee or holder of such contract, residing in this state, may lawfully recover any agreed rate of interest or damages on such contract until it is fully performed, not exceeding the legal rate of interest in the state where such contract purports to have been made or such mortgage security is located.”


source: Caselaw Access Project

author: CALLAHAN, C. J.

license: Public Domain

text:
    EMILY BABES, ADMINISTRATRIX (ESTATE OF CHERYL BABES) v. STEVEN BENNETT ET AL.
    (SC 15887)
    Callahan, C. J., and Borden, Berdon, Katz and Palmer, Js.
    Argued September 24
    officially released December 22, 1998

      Kathleen L. Nastri, for the appellant (plaintiff).

      David A. Haught, for the appellee (defendant state of Connecticut).
   Opinion

CALLAHAN, C. J.

In accordance with Practice Book § 73-1 and General Statutes § 52-235 (a), the trial court granted the parties’ joint interlocutory motion for reservation of a question of law to the Appellate Court. We subsequently transferred the reserved question to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c). The issue framed by the parties and reserved by the trial court for advice is: “When the [s]tate is sued pursuant to its waiver of sovereign immunity in [General Statutes] § 52-556, is it immune from a reallocation of damages pursuant to the provisions of [General Statutes] § 52-572h (g) in the event that it is a liable defendant and the plaintiff is unable to recover the damages awarded against another liable defendant?” We conclude that the state is not immune from reallocation of damages pursuant to § 52-572h (g) and answer the reserved question in the negative.

The following facts and procedural history are undisputed. On March 7,1995, the plaintiffs decedent, Cheryl Babes, was driving her automobile westbound on Route 202 in New Hartford. Mark Brodeur, an employee of the defendant state of Connecticut (state), was driving a van westbound on Route 202 directly behind Babes’ car. The vehicle being driven by Brodeur was owned and insured by the state. The named defendant, Steven Bennett, was traveling eastbound on Route 202, driving a pickup truck that was towing a flatbed trailer. The flatbed trailer became detached from Bennett’s truck, crossed the center line of the road, entered the westbound lanes of Route 202 and collided with Babes’ vehicle. Babes’ car came to rest in the westbound lanes of Route 202. The van driven by Brodeur collided with Babes’ vehicle, and Babes died as a result of the injuries she sustained in the two collisions.

The plaintiff, as administratrix of Babes’ estate, subsequently filed the present wrongful death action, naming both Bennett and the state as defendants. *3 Although the state generally is immune from suit, § 52-556 provides a cause of action against the state when any person is injured through the negligence of any state employee while operating a motor vehicle owned and insured by the state. See White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990) (statutory waiver of sovereign immunity). The parties have stipulated that a jury probably would return a verdict in favor of the plaintiff against Bennett. Bennett has a $20,000 liability insurance policy. The parties have agreed that Bennett has no other assets that could be used to satisfy a judgment against him and that a jury probably would award the plaintiff damages that greatly exceed the $20,000 limit of Bennett’s insurance policy. The parties also have agreed that, if the case were to go to trial, and the state were to be found liable, the plaintiff would seek reallocation to the state of any damages she is unable to collect from Bennett.

The parties, however, do not intend to go to trial. They have agreed to settle the matter. The amount the state is willing to pay the plaintiff depends upon whether the plaintiff is entitled to reallocate to the state any damages that cannot be collected from Bennett. The trial court deemed the resolution of this question sufficiently important to invoke the reservation procedures of Practice Book § 73-1 (e), which allow this court or the Appellate Court to answer specific reserved questions that are “reasonably certain to enter into the decision of the case, [if] it appears that their present determination would be in the interest of simplicity, directness and economy of judicial action.”

Section 52-572h (g) provides that, in the event a plaintiff is unable to recover damages awarded against a particular defendant, damages are to be reallocated among other defendant tortfeasors that were found liable. At issue, therefore, is the applicability of § 52-572h (g) to an action brought against the state pursuant, to § 52-556. The resolution of this issue is guided by well established principles of statutory construction. “The process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative histoiy and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citation omitted; internal quotation marks omitted.) Bhinder v. Sun Co., 246 Conn. 223, 230-31, 717 A.2d 202 (1998).

Our analysis is more specifically illuminated by the well settled principle that when the state waives sovereign immunity by statute “a party attempting to sue under the legislative exception must come clearly within its provisions, because [statutes in derogation of sovereignty should be strictly construed in favor of the state, so that its sovereignty may be upheld and not narrowed or destroyed .... Berger, Lehman Associates, Inc. v. State, 178 Conn. 352, 356, 422 A.2d 268 (1979). Where there is any doubt about [the] meaning or intent [of a statute in derogation of sovereign immunity, it is] given the effect which makes the least rather than the most change in sovereign immunity. White v. Burns, supra, 213 Conn. 312.” (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 101-102, 680 A.2d 1321 (1996). “The state’s sovereign right not to be sued may be waived by the legislature, provided clear intention to that effect is disclosed by the use of express terms or by force of a necessary implication.” (Internal quotation marks omitted.) Struckman v. Burns, 205 Conn. 542, 558, 534 A.2d 888 (1987).

The parties do not dispute that the negligence of Bennett and Brodeur proximately caused Babes’ injuries. Nor do they dispute that the state may be liable pursuant to § 52-556. The plaintiff contends, moreover, that the state’s liability pursuant to § 52-556 for damages for those injuries is governed by the provisions of § 52-572h, particularly the reallocation provisions of § 52-572h (g). The state maintains, in contrast, that § 52-572h (g) does not apply to actions brought against the state pursuant to § 52-556 and, therefore, does not govern the award of damages in such actions. We agree with the plaintiff.

Before addressing the effect that § 52-572h (g) has in an action brought pursuant to § 52-556, we first must determine the nature of the cause of action that may be brought against the state pursuant to § 52-556. Our inquiry begins with the language of § 52-556, which has remained substantially unchanged since the statute first was enacted in 1927. See Public Acts 1927, c. 209. Section 52-556 provides in relevant part that “[a]ny person injured . . . through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state . . . shall have a right of action against the state . . . .” (Emphasis added.) With the enactment of § 52-556, therefore, the state expressly waived sovereign immunity in motor vehicle negligence actions; Capers v. Lee, 239 Conn. 265, 273, 684 A.2d 696 (1996); and specifically consented to suits based on “negligence.” The legislature’s use of the term “negligence” in § 52-556 manifests the obvious intention of the legislature to consent to suit against the state based on the breach of a common-law duty of care in the operation of state owned and insured vehicles by state employees and officials. See Sullivan v. St,ate, 189 Conn. 550, 555 n.7, 457 A.2d 304 (1983) (§ 52-556 permits recovery against state on theory of vicarious liability for certain negligent acts by its agents, “a common-law liability borne by private employers”). Because the language of § 52-556 expressly waives the state’s immunity from suit based on common-law negligence, it appears that the legislature intended § 52-556 to incorporate the principles governing existing common-law negligence actions, and that the statute was not intended to create a separate statutory action to which different principles of liability and damages would apply.

We previously have distinguished between a waiver of immunity from suit and a waiver of immunity from liability for certain elements of damages. Specifically, we have concluded that the state’s waiver of immunity from suit in General Statutes § 13a-144; see footnote 4 of this opinion; the defective highway statute, is not an implicit waiver of the state’s immunity from liability for prejudgment interest; ***5 Struckman v. Burns, supra, 205 Conn. 559-60; or taxation of costs. State v. Chapman, 176 Conn. 362, 366, 407 A.2d 987 (1978); State ex rel. Foote v. Bartholomew, 111 Conn. 427, 432, 150 A. 308 (1930); State v. Anderson, 82 Conn. 392, 394, 73 A. 751 (1909).

Those conclusions, however, are based on the understanding that, if the legislature waives sovereign immunity by creating a separate statutory cause of action against the state, the parameters of that cause of action must be strictly construed. Moreover, the statute should not be read so as to have implicitly waived the state’s immunity from the imposition, pursuant to separate and distinct statutes, of damages or costs in excess of those damages expressly authorized in the statute creating the cause of action. Compensatory damages recovered pursuant to § 52-556, however, may be recovered by virtue of a common-law negligence cause of action with respect to which the state’s immunity has been waived, not by a statutorily created cause of action that must be closely circumscribed. In other words, § 52-556 does not create a heretofore unrecognized cause of action, but instead is a waiver that permits an already established common-law negligence action to be brought against the state.

We turn our attention, therefore, to the rules that governed negligence actions when the legislature enacted § 52-556. Section 52-556 initially was enacted in 1927; see Public Acts 1927, c. 209; and has remained substantially unchanged since that time. “Prior to October 1, 1986, this state adhered to the mies of joint and several liability with no contribution among joint tortfeasors. This doctrine can be stated succinctly. ‘If the illegal conduct of each of the defendants was a proximate cause of the collision, they would be liable jointly and severally, the plaintiff would have a right to recover the entire amount of damages awarded from either, and, if he did so, the defendant paying them would have no right of contribution against the other; or the plaintiff might have sued either alone, and of course in the event of a recovery, that one would have been compelled to pay the entire amount of damages.’ Rose v. Heisler, 118 Conn. 632, 633, 174 A. 66 (1934).” Donner v. Kearse, 234 Conn. 660, 666, 662 A.2d 1269 (1995). Thus, because joint and several liability was the mle governing damages in negligence actions generally at the time of the enactment of § 52-556, the statute subjected the state to joint and several liability. In fact, in Fairbanks v. State, 143 Conn. 653, 124 A.2d 893 (1956), a wrongful death action in which the state was named a defendant pursuant to a waiver of immunity under § 52-556, we affirmed a jury verdict for $75,000 against multiple defendants, including the state. A state employee, driving a car owned and insured by the state, negligently collided with the car of the plaintiffs decedent, resulting in the death of the plaintiffs decedent. Id., 654. A jury determined that the state and two other defendants were jointly and severally hable for payment of damages of $75,000. Id., 655. On appeal, ah three defendants claimed the jury award was excessive. Id. We concluded that the trial court did not improperly refuse to set aside the verdict. Id., 658-61. By implication, we previously have recognized, therefore, that the state may be held jointly and severally liable for damages in an action brought pursuant to § 52-556. Id.

To summarize, we conclude that, when the legislature enacted § 52-556, it intended that the substantive rules governing negligence actions generally would apply to actions brought pursuant to § 52-556. Because, at that time, the rules of joint and several liability governed negligence actions, the state, in an action brought against it pursuant to § 52-556, could be held responsible for the entire amount of damages awarded, rather than simply its proportionate share of such damages, even if there were solvent codefendants who were also hable.

In 1986, however, with the enactment of tort reform legislation, the legislature adopted comparative negligence principles, and, consequently, the rules of joint and several liability no longer govern common-law negligence actions in Connecticut. We are required, therefore, to consider the effect that the comparative negligence statute, § 52-572h, has on negligence actions brought against the state pursuant to § 52-556.

The state argues that it is immune from the reallocation provisions of § 52-572h (g). Specifically, the state maintains that the proportionate share of damages caused by a third party tortfeasor, Bennett, operating a vehicle not owned or insured by the state, should not be allocated to the state pursuant to § 52-572h (g) in the absence of an express statutory waiver of sovereign immunity for that specific purpose. The plaintiff, however, argues that, because the state has waived its immunity from suit for common-law negligence pursuant to § 52-556, the state is subject to the provisions of § 52-572h (g) of the comparative negligence statute concerning reallocation of uncollectible damages. The plaintiff contends that it would be illogical to allow the state to benefit from the apportionment provisions of § 52-572h (c) when there are multiple liable defendants, but not to subject the state to the reallocation provisions of § 52-572h (g) when a liable codefendant is insolvent. We agree with the plaintiff.

Our analysis begins with the language of the operative statutory provisions. Section 52-572h (c) provides in relevant part that “[i]n a negligence action to recover damages resulting from . . . wrongful death ... if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for his proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section.” (Emphasis added.) Section 52-572h applies specifically to negligence actions. Consequently, because § 52-556 permits a cause of action against the state based on negligence, an action brought pursuant to § 52-556 is a “negligence action” to which the comparative negligence principles of § 52-572h apply. Therefore, in such actions, unless § 52-572h (g) provides otherwise, § 52-572h (c) provides that a defendant whose conduct proximately caused the injury is liable solely for his proportionate share of damages.

We next consider the effect that the reallocation provisions of § 52-572h (g) have on actions brought against the state pursuant to § 52-556. Section 52-572h (g) (1) provides in relevant part that “the court shall determine whether all or part of a defendant’s proportionate share of the recoverable economic damages and recoverable noneconomic damages is -uncollectible from that party, and shall reallocate such uncollectible amount among the other defendants in accordance with the provisions of this subsection. ...” Thus, not only does § 52-572h (c) directly refer to § 52-572h (g), but both § 52-572h (c) and (g) address a party’s liability for a “proportionate share of the recoverable economic damages and [the] recoverable noneconomic damages . . . .”

The state argues that although the reference in § 52-572h (c) to the “proportionate share of the recoverable economic damages and recoverable noneconomic damages” applies to all liable defendants, the same language in § 52-572h (g) applies to all hable defendants except the state. Although it is not completely implausible that, in order to preserve the state’s fisc, the legislature intended that the state be permitted to apportion damages to other hable codefendants pursuant to § 52-572h (c), and to avoid reallocation of damages under § 52-572h (g) if a liable codefendant is insolvent, we “must interpret a statute as written . . . and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation.” (Internal quotation marks omitted.) Hall Manor Owner’s Assn. v. West Haven, 212 Conn. 147, 154, 561 A.2d 1373 (1989). There is nothing in the language of § 52-572h (c) and (g) to indicate that the legislature intended that the phrase “proportionate share of the recoverable economic damages and [the] recoverable noneconomic damages” apply to all defendants in § 52-572h (c), but apply to all defendants except the state in § 52-572h (g).

Furthermore, the legislative history and genealogy of § 52-572h (c) and (g) indicate that § 52-572h (g) was intended to apply to the state as well as to all other liable defendants. Section 52-572h (c) was enacted as part of the Tort Reform Act of 1986 (Tort Reform I); Public Acts 1986, No. 86-338, § 3; partially in response to concerns that, under the common-law rule of joint and several liability, a defendant who was only slightly at fault “could be held responsible for the entire amount of damages, as long as his negligence was a proximate cause of the plaintiffs injuries.” Donner v. Kearse, supra, 234 Conn. 667; see Biro v. Hill, 214 Conn. 1, 6, 570 A.2d 182 (1990). Public Acts 1986, No. 86-338, § 3 (c), which was codified as General Statutes (Rev. to 1987) § 52-572h (c), provides in relevant part that “in a negligence action ... if the damages are determined to be proximately caused by the negligence of more than one person, each person against whom recovery is allowed shall be liable to the claimant only for his proportionate share of the recoverable economic damages and the recoverable noneconomic damages . . . .” (Emphasis added.) Thus, under Tort Reform I, in determining the percentage of damages attributable to a particular defendant, the trier of fact was able to take into account the percentage of damages attributable to any other person, even if that person was not a party to the suit. A plaintiff was unable, however, to recover complete compensation for his injuries unless every person whose negligence proximately caused the injuries was a party to the suit. The share of damages attributable to nonparties was not recoverable.

The legislature amended § 52-572h (c) just one year later when it enacted Public Acts 1987, No. 87-227, § 3 (P.A. 87-227). Commonly referred to as Tort Reform II, P.A. 87-227, § 3 (c), provides in relevant part that “[i]n a negligence action ... if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for his proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section.” (Emphasis added.) Thus, the intent of P.A. 87-227 was to limit the universe of negligent persons that a finder of fact may consider in apportioning damages to only those entities that are either parties to the suit or parties who have reached a settlement agreement with the plaintiff — a clear indication that the legislature intended that § 52-572h (c) permit the plaintiff to obtain, to the maximum extent possible, complete compensation for his injuries.

The legislative history of P.A. 87-227 also indicates that the legislature intended to maximize the plaintiffs ability to recover damages from the parties whose negligence caused his injuries. Section 3 (g) (1) of P.A. 87-227 which was codified as § 52-572h (g), provides in relevant part that “after good faith efforts by the claimant to collect from a hable defendant . . . the court shah determine whether all or part of a defendant’s proportionate share of the recoverable economic damages and recoverable noneconomic damages is uncollectible from that party, and shall reallocate such uncollectible amount among the other defendants

During the discussion on the floor of the Senate on Substitute Senate Bill No. 1015, which eventually was enacted as P.A. 87-227, § 3, and codified as § 52-572h, Senator Anthony V. Avaflone remarked that under the bill, “so long as there is a solvent party who participated in a negligent act which resulted in damages,” the plaintiff would be entitled to a reallocation of economic damages. 30 S. Proc., Pt. 6, 1987 Sess., pp. 1936-37. Similarly, during the debate on the floor of the House of Representatives on Substitute Senate Bill No. 1015, Representative Richard D. Tulisano remarked that Tort Reform II “makes it clear that ... a victim in our society [will] be able to collect all of their out-of-pocket costs [from] people who committed torts against them. . . . [T]hose that are at fault, will be responsible . . . .” 30 H.R. Proc., Pt. 16, 1987 Sess., pp. 5649-50. Thus, the legislative histoiy of § 52-572h (g) manifests the legislature’s intention that a plaintiff in a negligence action be able to reallocate damages awarded against an insolvent defendant to other parties to the action whose negligence caused the plaintiffs injuries.

The legislature has made clear that, as between a victim and the negligent defendants, it is the defendants who should bear the risk that a tortfeasor is insolvent. The state has not pointed to any provision of the language or legislative history of § 52-572h (g) that suggests that the legislature intended to exempt the state from reallocation of damages pursuant to § 52-572h (g), nor has our independent research uncovered any such authority. On the basis of the language, legislative history and lineage of § 52-572h, we conclude, therefore, that the reallocation provisions of § 52-572h (g) were intended to apply to the state in the same manner that they apply to every other defendant. Consequently, in an action brought against the state pursuant to § 52-556, the state is subject to the comparative negligence rales of § 52-572h, including the reallocation provisions of § 52-572h (g).

In conclusion, we note that, in situations in which the plaintiffs injuries were caused by the negligence of more than one party, the comparative negligence rales of § 52-572h benefit the defendants, as well as the plaintiff. Prior to 1986, under the rales of joint and several liability, when multiple defendants caused the plaintiffs injuries, the state could have been the “deep pocket” defendant in an action brought against it pursuant to § 52-556. See Fairbanks v. State, supra, 143 Conn. 653. Under the comparative negligence statute, however, liability is apportioned among the tortfeasors, and each defendant is responsible to the plaintiff only for its proportionate share of recoverable damages. See General Statutes § 52-572h (c). Although the state is subject to reallocation of damages pursuant to § 52-572h (g) when a codefendant is insolvent, its liability after reallocation often will be less, and never will exceed, its liability under the rales of joint and several liability. *****9

The reserved question is answered “no.”

No costs will be taxed in this court to either party.

In this opinion the other justices concurred.

       General Statutes § 52-556 provides: “Any person injured in person or property through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state against personal injuries or property damage shall have a right of action against the state to recover damages for such injury.”

       General Statutes § 52-572h provides: “(a) For the purposes of this section: (1) ‘Economic damages’ means compensation determined by the trier of fact for pecuniary losses including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneconomic damages; (2) ‘noneconomic damages’ means compensation determined by the trier of fact for all nonpecuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering; (3) ‘recoverable economic damages’ means the economic damages reduced by any applicable findings including but not limited to set-offs, credits, comparative negligence, additur and remittitur, and any reduction provided by section 52-225a; (4) ‘recoverable noneconomic damages’ means the noneconomic damages reduced by any applicable findings including but not limited to set-offs, credits, comparative negligence, additur and remittitur.
      “(b) In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages resulting from personal injury, wrongful death or damage to property if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought including settled or released persons under subsection (n) of this section. The economic or noneconomic damages allowed shall be diminished in the proportion of the percentage of negligence attributable to the person recovering which percentage shall be determined pursuant to subsection (f) of this section.
      “(c) In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for his proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section.
      “(d) The proportionate share of damages for which each party is liable is calculated by multiplying the recoverable economic damages and the recoverable noneconomic damages by a fraction in which the numerator is the party’s percentage of negligence, which percentage shall be determined pursuant to subsection (f) of this section, and the denominator is the total of the percentages of negligence, which percentages shall be determined pursuant to subsection (f) of this section, to be attributable to all parties whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section. Any percentage of negligence attributable to the claimant shall not be included in the denominator of the fraction.
      “(e) In any action to which this section is applicable, the instructions to the jury given by the court shall include an explanation of the effect on awards and liabilities of the percentage of negligence found by the jury to be attributable to each party.
      “(f) The jury or, if there is no jury, the court shall specify: (1) The amount of economic damages; (2) the amount of noneconomic damages; (3) any findings of fact necessary for the court to specify recoverable economic damages and recoverable noneconomic damages; (4) the percentage of negligence that proximately caused the injury, death or damage to property in relation to one hundred per cent, that is attributable to each party whose negligent actions were a proximate cause of the ir\jury, death or damage to property including settled or released persons under subsection (n) of this section; and (5) the percentage of such negligence attributable to the claimant.
      “(g) (1) Upon motion by the claimant to open the judgment filed, after good faith efforts by the claimant to collect from a liable defendant, not later than one year after judgment becomes final through lapse of time or through exhaustion of appeal, whichever occurs later, the court shall determine whether all or part of a defendant’s proportionate share of the recoverable economic damages and recoverable noneconomic damages is uncollectible from that party, and shall reallocate such uncollectible amount among the other defendants in accordance with the provisions of this subsection. (2) The court shall order that the portion of such uncollectible amount which represents recoverable noneconomic damages be reallocated among the other defendants according to their percentages of negligence, provided that the court shall not reallocate to any such defendant an amount greater than that defendant’s percentage of negligence multiplied by such uncollectible amount. (3) The court shall order that the portion of such uncollectible amount which represents recoverable economic damages be reallocated among the other defendants. The court shall reallocate to any such other defendant an amount equal to such uncollectible amount of recoverable economic damages multiplied by a fraction in which the numerator is such defendant’s percentage of negligence and the denominator is the total of the percentages of negligence of all defendants, excluding any defendant whose liability is being reallocated. (4) The defendant whose liability is reallocated is nonetheless subject to contribution pursuant to subsection (h) of this section and to any continuing liability to the claimant on the judgment.
      “(h) (1) A right of contribution exists in parties who, pursuant to subsection (g) of this section are required to pay more than their proportionate share of such judgment. The total recovery by a party seeking contribution shall be limited to the amount paid by such party in excess of such party’s proportionate share of such judgment.
      “(2) An action for contribution shall be brought within two years after the party seeking contribution has made the final payment in excess of his proportionate share of the claim.
      “(i) This section shall not limit or impair any right of subrogation arising from any other relationship.
      (j) This section shall not impair any right to indemnity under existing law. Where one tortfeasor is entitled to indemnity from another, the right of the indemnitee is for indemnity and not contribution, and the indemnitor is not entitled to contribution from the indemnitee for any portion of his indemnity obligation.
      “(k) This section shall not apply to breaches of trust or of other fiduciary obligation.
      “(l) The legal doctrines of last clear chance and assumption of risk in actions to which this section is applicable are abolished.
      “(m) The family car doctrine shall not be applied to impute contributory or comparative negligence pursuant to this section to the owner of any motor vehicle or motor boat.
      “(n) A release, settlement or similar agreement entered into by a claimant and a person discharges that person from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides. However, the total award of damages is reduced by the amount of the released person’s percentage of negligence determined in accordance with subsection (f) of this section.”

       The original complaint also named Ernest Petrovits, Walter Arndt III and David Stoughton, the owners of Sunset Auto, as defendants. Bennett was employed by Sunset Auto at the time of the accident. The plaintiff withdrew the complaint against Petrovits, Arndt and Stoughton on July 2, 1996. The plaintiff subsequently filed an amended complaint naming only Bennett and the state as defendants.

       Cf. White v. Burns, supra, 213 Conn. 322-23 (legislature’s use of terms “neglect” and “default” rather than “negligence” in statutory waiver of sovereign immunity pursuant to General Statutes § 13a-144 indicated that legislature intended to provide for liability based on breach of statutory duty, rather than liability based on common-law negligence).
      General Statutes § 13a-144 provides in relevant part: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court. . . (Emphasis added.)

       General Statutes (Rev. to 1987) § 52-192a (b) provides in relevant part: “If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment,’ the court shall add to the amount so recovered twelve per cent annual interest on said amount, computed from the date . . . the complaint in the civil action was filed with the court . . . .”

       General Statutes (Rev. to 1977) § 52-257 provides in relevant part that “[t]he prevailing party in any such civil action . . . shall receive [costs]

       With the enactment of the Tort Reform Act of 1986; Public Acts 1986, No. 86-338, § 3, codified in part under General Statutes (Rev. to 1987) § 52-572h; the legislature adopted comparative negligence principles for negligence actions. Those tort reform provisions were later amended by Public Acts 1987, No. 87-227, § 3. See footnote 2 of this opinion.

       See General Statutes § 52-572h (n) (plaintiffs total damages reduced by amount of released person’s percentage of negligence).

       We also note that a right of contribution exists for parties who, because of reallocation, have paid more than their proportionate shares of damages. See General Statutes § 52-572h (g) (4) and (h). Thus, the state could seek contribution against any party whose proportionate share was reallocated to the state. Section 52-572h (h) gives a party who has paid more than its proportionate share of damages a right of contribution from the other defendant in the amount paid in excess of that party’s proportionate share of the claim.


author: PER CURIAM.

text:
    JERRY R. DALMASO v. DEPARTMENT OF MOTOR VEHICLES
    (SC 15911)
    Borden, Berdon, Norcott, Palmer and Peters, Js.
    Argued December 2
    officially released December 22, 1998

      Mark M. Wrenn, for the appellant (plaintiff).

      Robert L. Marconi, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

PER CURIAM.

After examining the record on appeal and considering the briefs and oral arguments of the parties, we have determined that the appeal in this case should be dismissed on the ground that certification was improvidently granted.

The appeal is dismissed.

       We granted the plaintiffs petition for certification limited to the following issue: “Under the circumstances of this case, did the Appellate Court properly conclude that the plaintiff refused to take the blood alcohol test within the meaning of General Statutes § 14-227b (f) (3)?” Dalmaso v. Dept. of Motor Vehicles, 244 Conn. 923, 923-24, 714 A.2d 9 (1998).