author: Shea, J.

text:
    Connecticut Insurance Guaranty Association v. Union Carbide Corporation et al.
    (13934)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.

      Argued November 7, 1990
    decision released February 5, 1991

      Joseph C. Tanski, with whom were Arthur W. Young III, Charles W. Pieterse and, on the brief, James A. Fulton and Douglas S. Skalka, for the appellantappellee (plaintiff).

      Robert E. Crotty, with whom were Taggart D. Adams and Neil Merkl, for the appellee-appellant (named defendant).
   Shea, J.

The plaintiff, Connecticut Insurance Guaranty Association (CIGA), brought this declaratory judgment action for the purpose of resolving certain issues relating to its obligation pursuant to the Connecticut Insurance Guaranty Association Act, General Statutes §§ 38-273 through 38-289, to reimburse the defendant Union Carbide Corporation (UCC) for claims arising out of a chemical plant disaster in Bhopal, India, which were covered by liability policies insuring UCC issued by insurance companies that have become insolvent. Cross motions for summary judgment were filed by CIGA and UCC and the trial court rendered a declaratory judgment in favor of UCC upon three of the five issues presented, concluding that two of the issues could not be decided on the basis of the record. The court ruled that: (1) the definition of a “covered claim” in General Statutes § 38-275 (4), which CIGA is obligated to pay, refers to the claim of each Bhopal victim and not the aggregate demand of UCC to be reimbursed for all the claims it has paid from noninsurance sources as a result of the insolvency of three of its insurers; (2) CIGA must reimburse UCC for paying all claims of the Bhopal victims covered by the policies of the insolvent carriers, because UCC “now stands in the shoes” of those companies, subject to the maximum of $300,000 for each victim’s claim as provided by General Statutes § 38-278 (1) (a) (ii);* and (3) CIGA must also pay for UCC’s costs of defense and settlement. The court deemed the record insufficient to render a declaratory judgment on the two remaining issues: (1) how the deductible of $100 provided by § 38-278 (1) (a) (ii) should be allocated to the claims for which UCC seeks reimbursement; and (2) what effect payments made by other insurance carriers in settlement of Bhopal claims should have pursuant to General Statutes § 38-282 (1) in reducing the amount due UCC.

On appeal CIGA challenges the trial court’s decision on the three issues resolved by the judgment and also seeks a ruling by this court upon the issues left undetermined. UCC has filed a cross appeal in which it seeks a remand directing the entry of judgment for the amount of its claim for reimbursement, $32,500,000 plus interest.

We affirm the judgment of the trial court on the first two issues ruled upon, vacate its declaration upon defense costs as premature, and remand the case for further proceedings with respect to the remaining issues. With respect to the cross appeal, we agree with the trial court that the relief sought by UCC would be inappropriate at this stage of the proceeding.

There is no dispute about the facts relied upon by the trial court in rendering judgment, which were taken largely from the affidavits filed in support of the motions for summary judgment. CIGA is a “nonprofit unincorporated legal entity” created by General Statutes § 38-276 and composed of all insurers licensed to transact business in this state that write any kind of direct insurance, except for those specifically excluded from the application of the Connecticut Insurance Guaranty Association Act by General Statutes § 38-274. UCC is a corporation organized under the laws of New York but having its principal place of business in Dan-bury. It was the owner of 50.9 percent of the common stock of Union Carbide of India, Ltd., which owned a chemical plant in Bhopal, India.

During the night of December 2-3, 1984, a release of toxic gas from the Bhopal plant killed approximately 2300 residents in the area, injured more than 200,000 other people, and also resulted in extensive damage to livestock and crops. Over 500,000 claims were asserted in India against UCC, alleging that it was responsible for the damages resulting from the release of gas from the Bhopal plant. Approximately 150 lawsuits were brought in the United States on behalf of 200,000 Indian claimants against UCC. All but three of these actions were dismissed in favor of litigating the claims in India on the ground of forum non conveniens. In 1985 the government of India by an act of its parliament assumed the right to prosecute all claims arising out of the Bhopal incident. All the claims were consolidated into a single action against UCC in India seeking $3,000,000,000 in damages. In February, 1989, this action was settled by the payment of $420,000,000 on behalf of UCC and $45,000,000 by Union Carbide of India, Ltd., to the Indian government.

At the time of the Bhopal disaster, UCC had a primary liability insurance policy of $500,000, a lead umbrella policy of $2,000,000, and excess insurance of $200,000,000 consisting of forty-two “excess umbrella” policies, providing total coverage of $202,500,000. One hundred seventy million dollars has been paid on behalf of UCC by virtue of these policies, exhausting the limits of coverage provided by those insurers that are solvent. Three excess insurers,5 however, whose policies provide for $32,500,000 of coverage, have become insolvent and UCC seeks now to be indemnified by CIGA for the failure of these insolvent companies to fulfill their policy obligations. Even if all its insurers had paid their full share of the settlement payment, UCC would still have paid $217,500,000 without reimbursement from insurance sources.

I

The principal issue in this case is whether the term “covered claims,” for which General Statutes § 38-278 (1) (b) requires CIGA to assume the obligations of the insolvent insurers, subject to a maximum for each such claim of $300,000 and a deductible of $100, refers to UCC’s aggregate claim for reimbursement of $32,500,000 or to the separate claims of the Bhopal victims that have been paid by UCC from noninsurance sources in the settlement with the government of India. The trial court held that “[t]he claims are the assertions of rights and demands for relief made by the claimants injured in the Bhopal disaster” and, accordingly, ruled that “[t]he $300,000 statutory limit is for each of the some 550,000 claims.” We agree with this determination of the trial court.

CIGA maintains that a covered claim is the claim of an insured for indemnification under a liability policy, not the separate claims of tort victims that give rise to the claim for indemnification. It contends, therefore, that UCC’s claim to be reimbursed for the single Bhopal occurrence under each of the six policies issued by the three insolvent insurers can constitute no more than six covered claims, each subject to the $300,000 maximum per claim of § 38-278 (1) (a). Under this analysis, CIGA’s total obligation for the $32,500,000 of coverage provided by these insolvent insurers and applicable to the Bhopal incident could not exceed $1,800,000.

Section 38-275 (4), at the time of the loss in 1984, defined a “covered claim” to mean “an unpaid claim . . . which arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy to which this chapter applies issued by an insurer, if such insurer becomes an insolvent insurer after October 1, 1971, and (a) the claimant or insured is a resident of this state at the time of the insured event . . . .” It is not disputed that UCC qualifies as a resident of Connecticut and is both a “claimant” and an “insured.” CIGA maintains that the clause “which arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy” can refer only to the claim of an insured and not that of a tort victim against an insured, which arises out of wrongful conduct resulting in injury and is not limited by any insurance policy. The claim of a tort victim, however, may be said to arise out of and be within the coverage and subject to the applicable limits of the policy so far as the insurer is concerned by virtue of General Statutes § 38-175, which provides that “[ejach insurance company which issues a policy to any person . . . insuring against loss or damage . . . for which . . . such person ... is legally responsible, shall, whenever a loss occurs under such policy, become absolutely liable . . . .” This statute also permits an action directly against an insurer by a tort victim who has obtained a judgment against an insured that remains unsatisfied for thirty days. The Bhopal victims, therefore, upon the occurrence of their losses, apart from their causes of action against UCC, had claims against the insolvent insurers, that arose out of the policies issued to UCC and were subject to the terms of those policies.

CIGA’s argument that the definition of a “covered claim” in § 38-275 (4) encompasses only the claim of an insured is also refuted by the reference of the statute to “the claimant or insured,” indicating that either a claimant or an insured resident of Connecticut might present a “covered claim.” The 1987 amendment of the “covered claim” definition effectuated by Public Acts 1987, No. 87-290, § l, *****ISdifferentiated between a claimant and an insured with respect to eligibility for asserting such a claim and expressly excluded those who are neither United States citizens nor aliens legally residing in this country from filing such a claim for accidents or losses occurring in other countries. The amendment, as well as its legislative history, indicate that the legislature regarded any person, whether a tort victim or an insured, as eligible to file a covered claim, but sought to exclude alien nonresidents, such as the Bhopal victims, from doing so after the effective date of the amendment, October 1, 1987. A similar recognition of the right of either a claimant or an insured to present covered claims is contained in § 38-278 (1) (a) (ii), which establishes the $300,000 limit per claim and refers to CIGA’s obligation “to any policyholder or claimant.” General Statutes § 38-281 (1)* also alludes to “[e]very insured or claimant seeking the protection of this chapter,” again implying that each claimant as well as each insured may present a “covered claim.”

CIGA also argues that only one “covered claim” can arise out of an insolvent policy for each “occurrence” and that, because the Bhopal incident constituted a single occurrence, UCC can have only one “covered claim” for this occurrence, subject to the $300,000 limit. The statute, however, does not use the word “occurrence” and § 38-278 (1) (a) (ii) expressly applies the $300,000 limit to “claims,” not occurrences. The six policies issued by the insolvent insurers contain limits per occurrence, but those limits total $32,500,000. There is no basis for substituting the word “occurrence” for the word “claim” in the provision of § 38-278 (1) (a) (ii) declaring that CIGA’s obligation “shall include only that amount of each such claim which is in excess of one hundred dollars and is less than three hundred thousand dollars.” The occurrence limitation of each policy does, of course, define the measure of CIGA’s obligation under the policy for a particular occurrence, in accordance with the provision that “in no event shall said association be obligated ... in an amount in excess of the obligation of the insolvent insurer.” General Statutes § 38-278 (1) (a) (ii). The authorities cited by CIGA in support of its construction of § 38-278 (1) (a) (ii) do not hold to the contrary. Arizona Property & Casualty Ins. Guaranty Fund v. Helme, 153 Ariz. 129, 134, 735 P.2d 451 (1987); Vickodil v. Pennsylvania Ins. Guaranty Assn., 356 Pa. Super. 325, 514 A.2d 635 (1986). In both these cases the courts properly recognized that the obligations of the guarantors were subject to the terms of the policies involved.

We also reject CIGA’s factual contention that, because the six policies of the insolvent insurers indemnified UCC only for its “ultimate net loss,” its right of recourse to CIGA can constitute only one covered claim, subject to the statutory maximum of $300,000 per policy. The term “ultimate net loss” is defined in these policies to be “[t]he total sum which the insured . . . becomes legally obligated to pay as damages because of personal injury, property damage or advertising liability claims ... as consequence of any occurrence covered hereunder . . . .” (Emphasis added.) This definition contemplates that multiple claims may arise from a single occurrence and is employed with a specific monetary limit in each policy to establish the maximum of the insurer’s obligation under the policy. It does not require that UCC aggregate its claims for indemnification as a condition for presenting them to the insurer but simply delineates the insurer’s maximum exposure from a single occurrence.

Similarly, we conclude that there is no merit in CIGA’s position that, because the government of India assumed control of all the claims arising out of the Bhopal incident, which were consolidated into a single action, UCC’s claim for indemnification arising therefrom constitutes only a single claim subject to the $300,000 maximum. The statute authorizing this assumption of control empowered the Indian government to represent the claimants for the purpose of efficiently resolving these claims. It did not purport to affect the substantive rights of the Bhopal victims to be compensated for their losses. Such a procedural device cannot be deemed to have diminished UCC’s corresponding right to be indemnified by its insurance carriers, or their guarantor, CIGA, subject to the provisions of § 38-278.

Apart from our conclusion that the text of the act does not support the imposition of a $300,000 limit upon UCC’s claim for indemnification under each of the six policies whose insurers have become insolvent, we are also persuaded that the remedial purpose of this legislation would be largely defeated by such a restriction. Although this case involves a substantial indemnification claim of $32,500,000 presented by a large corporate enterprise, it is not exceptional today for individuals to carry liability insurance with limits far in excess of $300,000. The recovery of $300,000 by a single victim of an automobile accident is not extraordinary, and when there are multiple victims the total liability of the insured can readily exceed that amount. If we were to accept CIGA’s argument that only an insured may present a covered claim and that such a claim for indemnification from a single occurrence is limited to $300,000, the protection of Connecticut residents against losses resulting from insolvency of insurance carriers, which the legislature intended to provide, would often prove illusory. Accordingly, we affirm the first and second conclusions of the trial court that the $300,000 limit of § 38-278 (1) (a) (ii) applies to each of the underlying claims of the Bhopal victims and that CIGA must pay the claims presented under the six policies of the insolvent carriers.

II

The third issue on which the trial court rendered summary judgment involves UCC’s expenditure of “$6,396,374.78 in legal services and other costs in the settlement of the claims,” as stated by the court. In rendering judgment, the court declared simply that “CIGA must pay Carbide’s costs of defense and settlement,” relying upon the principle that an insured may recover the reasonable costs of defense as well as settlement when the carrier has wrongfully denied coverage and refused to defend a claim. Alderman v. Hanover Ins. Group, 169 Conn. 603, 611,363 A.2d 1102 (1975); Missionaries of the Company of Mary, Inc. v. Aetna Casualty & Surety Co., 155 Conn. 104,114, 230 A.2d 21 (1967).

The evident basis for this determination is the provision of § 38-278 (1) (b) that CIGA shall “be deemed the insurer to the extent of its obligations on the covered claims and to such extent shall have all rights, duties, and obligations of the insolvent insurer as if the insurer had not become insolvent.” On appeal, CIGA does not contest the applicability of this provision generally to the expenses incurred by an insured in defending or settling a claim after a liability insurer has failed to fulfill its obligation to do so. To this part of the summary judgment it has raised as objections only the failure of the court to declare that (1) the $300,000 limit for each covered claim is applicable to UCC’s total claim for defense costs, and (2) under the terms of the six excess policies of the three insolvent insurers in relation to the more primary coverage, no duty to defend was imposed on those companies or on CIGA.

The trial court did not address the issue of whether the $300,000 maximum per claim was applicable to UCC’s claim for defense costs. No such issue, however, was expressly raised in the complaint, counterclaim, or cross motions for summary judgment filed by the parties. No motion has been made for further articulation of the decision pursuant to Practice Book § 4051. This court does not ordinarily consider issues not presented to or addressed by the trial court. Practice Book § 4185; State v. Hinckley, 198 Conn. 77, 81, 502 A.2d 388 (1985). There is no good reason to deviate from that policy in this case, because the issue can be determined properly in further proceedings on the remand that is necessary for reasons unrelated to this procedural flaw.

There appears to be a factual dispute that would preclude resolution of whether CIGA must indemnify UCC for its defense costs under the terms of the six policies issued by the insolvent insurers. A policy issued by Royal Indemnity Company and affording coverage of $5,000,000 at the first layer of excess coverage contains an endorsement providing that “as of March 1, 1984 all expense costs shall be self-insured,” a date approximately nine months before the Bhopal disaster. Although the policy limit for this coverage has been paid, CIGA claims that the obligations of the insolvent insurers that follow the Royal policy have similarly been restricted to exclude defense costs as a result of this endorsement. UCC, however, maintains that the Royal policy endorsement was ineffective because it was inconsistent with other provisions of the policy, thus creating an ambiguity to be resolved in favor of the insured. The trial court did not expressly consider this question, although it is mentioned in the memorandum of decision as one of the issues upon which CIGA sought a declaratory judgment. Again, neither party moved for articulation on the issue.

In any event, we conclude, as the trial court may possibly have decided, that the issue of ambiguity raised by UCC cannot be adequately resolved in a summary judgment proceeding. An essential condition for such a judgment is the absence of any material issue of fact. Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 402, 528 A.2d 805 (1987). The question of possible ambiguity in the intentions of UCC and Royal with respect to the endorsement concerning defense costs can best be resolved after there has been evidence of the circumstances under which this change in the policy terms was made.

Although we do not fault the trial court for failing to consider the two issues concerning defense costs raised by CIGA on appeal, the court acted prematurely in declaring unqualifiedly that “CIGA must pay Carbide’s costs of defense and settlement.” Those two issues must be resolved before such an order would be appropriate. Furthermore, it is not clear from the record whether the amount claimed for defense costs is reasonable and includes only those expenses related to the failure of the insolvent companies to fulfill their obligations. If the amount claimed represents all defense costs, the court should devise some reasonable method of allocating the share to be borne by CIGA. This question can be clarified on remand. Accordingly, the part of the declaratory judgment requiring CIGA to pay UCC’s defense costs is vacated.

Ill

The trial court refused to grant CIGA’s various prayers for relief concerning the application of General Statutes § 38-282 (1) to the claims of the Bhopal victims, for which UCC seeks indemnification. Section 38-282 (1) imposes two conditions restricting CIGA’s obligation to pay covered claims: (1) the claimant “shall exhaust first his rights under” a policy of insurance issued by a solvent insurer; and (2) “[a]ny amount payable on a covered claim . . . shall be reduced by the amount of any recovery under such insurance policy.” With respect to the exhaustion requirement, the court apparently found no need to make the declaration requested in the complaint, because it is undisputed that UCC has exhausted its rights under the solvent policies by virtue of the payment of the full amount of coverage represented by those policies, $170,000,000 as a contribution to the settlement of the Bhopal claims. On appeal, CIGA does not attack this determination.

A

Concerning the provision of § 38-282 (1) for reduction of covered claims by amounts recovered from other insurance policies, the trial court refused to make any declaration, because the record did not disclose “what reductions, if any, should be made in CIGA’s obligations because of ‘other insurance’ available to the claimants or collateral benefits they may have received.” In thus declining to resolve the issue until there was evidence of other insurance or benefits available to the claimants, the court implicitly rejected the claim of CIGA that the amount paid to or on behalf of UCC by its solvent insurers, $170,000,000, should effectuate a reduction that would entirely eliminate its obligations under the insolvent policies. CIGA pursues this claim on appeal, maintaining that the reduction for the insurance provided by the solvent insurers has wiped out its obligation for the $32,500,000 of coverage provided by the insolvent policies to pay covered claims arising out of the Bhopal incident.

We agree with the trial court’s implicit rejection of CIGA’s claim of entitlement to a reduction for other insurance on the basis of the present record. The evident purpose of providing in § 38-282 (1) for a reduction of a covered claim “by the amount of any recovery” from other available insurance was to prevent a person from twice receiving benefits for the same loss or otherwise obtaining a windfall, not to reduce the amount of a claim for a loss that remains partially unsatisfied. The corresponding provision of the model act, which uses virtually the same language, is entitled “Non-duplication of Recovery.” NAIC State Post-Assessment Insurance Guaranty Association Model Bill. The different caption used by our legislature for § 38-282 does not indicate a different purpose from that contemplated by the framers of the model act, but is simply more descriptive of the mechanism used to prevent a double recovery. There is nothing in the record of this case to indicate that UCC had recourse to any other insurance from which to satisfy its claim for indemnification under the insolvent policies or that the Bhopal claimants had such recourse.

To construe § 38-282 (1) to allow CIGA to offset its obligation as guarantor of the insolvent policies by amounts paid by solvent insurers that fall short of satisfying a claim for indemnification would seriously undercut the protection that the legislature intended to provide. Such a result would penalize the prudent practice of dividing portions of the total liability coverage among different insurers, whether collateral or excess, in order to lessen the risk of insurer insolvency. CIGA’s proposed interpretation effectively reduces the coverage afforded by the insolvent policies to the extent of coverage available under the solvent policies even though the loss remains partially unsatisfied. Thus, it would encourage placing the entire amount of liability coverage with a single carrier in order to make CIGA’s resources fully available in the event of insurer insolvency. In such a situation, the impact of the insolvency on CIGA would not be diminished by the availability of other solvent insurers to respond to a portion of the loss and would result in greater depletion of CIGA’s resources.

We agree with those courts holding that statutory provisions similar to § 38-282 (1) were intended to apply only to prevent duplicate or windfall recoveries for losses sustained by an insured or a claimant resulting from insurer insolvency. In rejecting an argument similar to that raised by CIGA, the Supreme Court of Arizona declared: “In general, the legislative objective was to make the Fund liable to the same extent that the insolvent insurer would have been liable under its policy.” Arizona Property & Casualty Ins. Guaranty Fund v. Herder, 156 Ariz. 203, 205, 751 P.2d 519 (1988). “We note at the outset that the statute does not provide for any offset or reduction in limits payable.” (Emphasis omitted.) The Washington Court of Appeals has similarly stated that “the purpose of the exhaustion provision is to avoid duplication of recovery and prevent windfall judgments” in holding that a guaranty association “cannot offset payments by a primary insurer when it is standing in the shoes of an insolvent excess insurer.” Washington Ins. Guaranty Assn. v. McKinstry Co., 56 Wash. App. 545, 554, 784 P.2d 190 (1990). The cases relied upon by CIGA are clearly distinguishable.

B

The trial court also refused to respond to CIGA’s prayers for relief seeking a declaratory judgment that its obligation to pay covered claims should be reduced by any amount the Bhopal victims received or were eligible to receive for their claims from any insurance source other than the coverage insuring UCC, from any governmental source, or from any source whatsoever. The reasons given for this refusal were that none of the “non-insured claimants,” as the court referred to them, or their putative insurers, which might have subrogation claims, had been joined in the action.

Both CIGA and UCC maintain that neither the Bhopal victims nor any insurers who have paid benefits to them are proper parties because, after the settlement of the victims’ claims, they no longer had any interest in the amount UCC might recover by way of indemnification from CIGA. Although we agree that the settlement removed the need to afford the victims or their personal insurers, if any, an opportunity to enter the suit, we conclude for a different reason that it would have been inappropriate for the court to have addressed the issues raised in these prayers for relief. The present record does not disclose that any of the victims received payments from any other source but UCC, which paid the agreed settlement amount to the government of India as the victims’ representative. In this factual vacuum it would have been improper for the court to determine the issues proposed for adjudication. “[T]he declaratory judgment procedure may not be utilized merely to secure advice on the law ... or to secure the construction of a statute if the effect of that construction will not affect a plaintiffs personal rights . . . Horton v.Meskill, 172 Conn. 615, 627, 376 A.2d 359 (1977). Until there is evidence of payments to the Bhopal victims from sources other than the settlement funds, the rendition of a declaratory judgment on the effect of such payments in reducing CIGA’s obligation would violate these principles.

IY

In its second prayer for relief, CIGA sought a declaration that the $100 deductible provision of § 38-278 (1) (a) (ii) be applied to each of the 500,000 claims of the Bhopal victims and thus effectuate a reduction of $50,000,000 in its obligation as guarantor of the insolvent policies. The trial court rejected this claim, holding that the provision applied only “to a claim processed and paid.” Because the record did not disclose how much UCC had paid for the purpose of settling each of the 500,000 claims of the Bhopal victims individually for which it sought indemnification, however, the court refused to make any further determination of how the deductible amount should be applied against the aggregate sum of $32,500,000 of coverage represented by the insolvent policies.

We agree with the trial court that CIGA’s simplistic approach of multiplying the total number of claims settled by $100 and deducting the product thus obtained from its total obligation under the insolvent policies is not sanctioned by § 38-278 (1) (a) (ii). That provision obligates CIGA to pay “only that amount of each [covered] claim which is in excess of one hundred dollars and is less than three hundred thousand dollars.” In seeking indemnification, UCC is in the same position as each Bhopal victim whose claim it has settled from its own funds. If these claims had been presented by the victims individually, CIGA’s obligation would include only covered claims exceeding $100 and its payment of each such claim would reflect a deduction in this amount.

Without facts that would provide a basis for allocating the funds paid by UCC and by its solvent insurers among the 500,000 claims settled, it is impossible at this stage of the proceedings to decide upon the amount of the allowance to be made to CIGA by virtue of the $100 deductible clause. The trial court wisely did not attempt to make such a determination on the present record, which contains little of the information necessary. We agree with the court that resolution of this issue must await further proceedings.

Y

In its cross appeal, UCC claims that the trial court should have rendered a judgment on its counterclaim for $32,500,000, the amount of coverage provided by the insolvent policies. No such monetary award was included, however, in UCC’s prayers for relief, nor in its motion for summary judgment. This request for monetary relief was first made in UCC’s reply trial brief.

The trial court decided that the issues left unresolved in rendering the declaratory judgment precluded an award of a specific sum of money at that stage of the proceedings, because the facts presented by the motions for summary judgment were insufficient. We agree with this conclusion and find no error on the cross appeal. Until the issues concerning defense costs, the availability of other insurance to the Bhopal victims and the applicability of the deductible clause have been fully determined, the amount due UCC cannot be ascertained and no monetary award would be appropriate.

With respect to the appeal, the portion of the judgment requiring CIGA to pay UCC’s defense costs is vacated and the case is remanded for further proceedings consistent with this opinion.

With respect to the cross appeal, the judgment is affirmed.

In this opinion the other justices concurred.

       At the time of the loss, in December, 1984, General Statutes § 38-275 (4) provided as follows: “ ‘Covered claim’ means an unpaid claim, including but not limited to, one for unearned premiums, which arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy to which this chapter applies issued by an insurer, if such insurer becomes an insolvent insurer after October 1, 1971, and (a) the claimant or insured is a resident of this state at the time of the insured event; or (b) the property from which the claim arises is permanently located in this state, provided the term ‘covered claim’ shall not include any amount due any reinsurer, insurer, insurance pool, or underwriting association, as subrogation recoveries or otherwise.”
      This provision was renumbered subsection (6) and extensively revised by Public Acts 1987, No. 87-290, § 1, and Public Acts 1988, No. 88-76, § 2.

       At the time of the loss, General Statutes § 38-278 (1) (a) (ii) provided as follows: “(1) Said association shall: (a) Be obligated to the extent of the covered claims existing prior to the determination of insolvency and arising within thirty days after the determination of insolvency, or before the policy expiration date if less than thirty days after the determination, or before the insured replaces the policy or causes its cancellation, if he does so within thirty days of such determination, provided such obligation shall be limited as follows . . . (ii) with respect to covered claims other than for unearned premiums, such obligation shall include only that amount of each such claim which is in excess of one hundred dollars and is less than three hundred thousand dollars, except that said association shall pay the full amount of any such claim arising out of a workers’ compensation policy, provided in no event shall said association be obligated to any policyholder or claimant in an amount in excess of the obligation of the insolvent insurer under the policy form from which the claim arises or for any claim filed with the association after the expiration of two years from the date of the declaration of insolvency.”
      This provision was amended by Public Acts 1987, No. 87-290, § 3.

       At the time of the loss, General Statutes § 38-282 (1) provided as follows: “(1) Any person having a claim against an insurer under any provision in an insurance policy, other than a policy of an insolvent insurer, which is also a covered claim under this chapter, shall exhaust first his rights under such policy. Any amount payable on a covered claim under this chapter shall be reduced by the amount of any recovery under such insurance policy.” This provision was amended by Public Acts 1988, No. 88-76, § 3.

       In Connecticut Ins. Guaranty Assn. v. Raymark Corporation, 215 Conn. 224, 575 A.2d 693 (1990), this court held that the failure to comply with the requirement of Practice Book § 390 (d) for notification or joinder of claimants against the insured in a declaratory judgment action seeking to determine CIGA’s obligation for such claims under policies issued by an insolvent insurer was a jurisdictional defect invalidating the judgment rendered by the trial court. In the present case, however, it appears that the government of India has legislatively assumed control of all claims arising out of the Bhopal disaster and, as the representative of all such claimants, has accepted the amount paid by or on behalf of UCC in full settlement of those claims. We conclude, therefore, that it is unnecessary to notify the three claimants whose cases are still pending in this country of this declaratory judgment action.

       These figures are taken from the memorandum of decision. CIGA and UCC in their briefs indicate that the total coverage was $204,000,000 allocated among various policies. This discrepancy is of no significance with respect to the issues raised in this appeal.

       These insurers are Transit Casualty Company, Midland Insurance Company and Integrity Insurance Company.

       At the time of the loss, General Statutes § 38-278 (1) (b) provided as follows: “Said association shall ... (b) be deemed the insurer to the extent of its obligations on the covered claims and to such extent shall have all rights, duties, and obligations of the insolvent insurer as if the insurer had not become insolvent.”

       “[General Statutes] Sec. 38-175. liability of insurer under liability policy. Each insurance company which issues a policy to any person, firm or corporation, insuring against loss or damage on account of the bodily injury or death by accident of any person, or damage to the property of any person, for which loss or damage such person, firm or corporation is legally responsible, shall, whenever a loss occurs under such policy, become absolutely liable, and the payment of such loss shall not depend upon the satisfaction by the assured of a final judgment against him for loss, damage or death occasioned by such casualty. No such contract of insurance shall be cancelled or annulled by any agreement between the insurance company and the assured after the assured has become responsible for such loss or damage, and any such cancellation or annulment shall be void. Upon the recovery of a final judgment against any person, firm or corporation by any person, including administrators or executors, for loss or damage on account of bodily injury or death or damage to property, if the defendant in such action was insured against such loss or damage at the time when the right of action arose and if such judgment is not satisfied within thirty days after the date when it was rendered, such judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment.”

       Public Acts 1987, No. 87-290 § 1, provides in relevant part: “[(4)] (6) ‘Covered claim’ means an unpaid claim, including, but not limited to, one for unearned premiums, which arises out of and is within the coverage and [not in excess of] SUBJECT TO the applicable limits of an insurance policy to which this chapter applies issued by an insurer, if such insurer becomes an insolvent insurer after October 1,1971, and (a) the claimant [or insured] is a resident of this state at the time of the insured event; or (b) THE CLAIMANT IS NOT A RESIDENT OF THIS STATE, BUT ONLY UNDER ALL OF THE FOLLOWING CONDITIONS: (i) THE INSURED IS A RESIDENT OF THIS STATE AT THE TIME OF THE INSURED EVENT; (ii) THE INSOLVENT INSURER IS LICENSED TO DO BUSINESS IN THIS STATE AT THE TIME OF THE INSURED EVENT; (iii) THE STATE OF THE CLAIMANT’S RESIDENCE HAS AN ASSOCIATION SIMILAR TO THE ASSOCIATION CREATED BY THIS CHAPTER; AND (iv) SUCH CLAIMANT IS REFUSED COVERAGE BY SUCH ASSOCIATION BECAUSE THE INSOLVENT INSURER IS NOT LICENSED TO DO BUSINESS IN THE STATE OF THE CLAIMANT’S RESIDENCE AT THE TIME OF THE INSURED EVENT; OR (c) the property from which the claim arises is permanently located in this state, provided the term ‘covered claim’ shall not include any amount due any reinsurer, insurer, insurance pool, or underwriting association, as subrogation recoveries or otherwise. A CLAIM SHALL NOT BE A ‘COVERED CLAIM’ IF IT IS FILED BY OR ON BEHALF OF AN INDIVIDUAL WHO IS NEITHER A CITIZEN OF THE UNITED STATES NOR AN ALIEN LEGALLY RESIDENT IN THE UNITED STATES AT THE TIME OF THE INSURED EVENT, OR AN ENTITY OTHER THAN AN INDIVIDUAL WHOSE PRINCIPAL PLACE OF BUSINESS IS NOT IN THE UNITED STATES AT THE TIME OF THE INSURED EVENT, AND IT ARISES OUT OF AN ACCIDENT, OCCURRENCE, OFFENSE, ACT, ERROR OR OMISSION THAT TAKES PLACE OUTSIDE OF THE UNITED STATES, OR A LOSS TO PROPERTY NORMALLY LOCATED OUTSIDE OF THE UNITED STATES OR, IF A WORKERS’ COMPENSATION CLAIM, IT ARISES OUT OF EMPLOYMENT OUTSIDE OF THE UNITED STATES.”

       Representative Gabriel J. Biafore of the 125th District remarked as follows:
      “Yes, Mr. Speaker. The bill itself, what it does . . . it is to reduce Connecticut’s future explosion of claims from non-residents. Currently, if the insurance company is licensed in Connecticut and goes bankrupt, the Connecticut Guaranty Fund may be liable to claims all over the world.
      “What this will do is just have us liable for Connecticut residents. Also, Mr. Speaker, for legislative intent, substitute Senate Bill 842 applies to claims filed with the Connecticut Insurance Guaranty Association after enactment of this bill. And the claims filed before enactment are governed by the present statute.” 30 H.R. Proc., Pt. 22, 1987 Sess., pp. 8140-41.

       “[General Statutes] Sec. 38-281. assignment of rights under policy. RECEIVER OR LIQUIDATOR BOUND BY SETTLEMENTS. PRESERVATION OF rights OF association, right of recovery. (1) Any person recovering any moneys under this chapter shall be deemed to have assigned his rights under the policy, in respect of which he is recovering, to said association to the extent of his recovery from said association. Every insured or claimant seeking the protection of this chapter shall cooperate with said association to the same extent as such person would have been required to cooperate with the insolvent insurer. Said association shall have no cause of action against any insured of the insolvent insurer for any sums it has paid out to such insured except such causes of action as the insolvent insurer would have had if such sums had been paid by the insolvent insurer. In the case of an insolvent insurer operating on a plan with assessment liability, payments of claims of said association shall not operate to reduce the liability of insureds to the receiver, liquidator, or statutory successor for unpaid assessments.”

       The memorandum of decision states that “some $164,000,000 has been paid by those solvent insurance companies which insured Carbide.” CIGA in its brief declares that the solvent insurers have paid $170,000,000 to UCC. The UCC brief indicates that it has received $171,632,920 from its solvent insurers. We have used the $170,000,000 figure because, together with the $32,500,000 of coverage represented by the insolvent policies, the total coverage available to UCC was $202,500,000, as the trial court assumed. See footnote 5, supra.

       “[General Statutes (Rev. to 1983)] Sec. 38-282. exhaustion of rights under policy prior to claim against association, claims recoverable from more than one association. (1) Any person having a claim against an insurer under any provision in an insurance policy, other than a policy of an insolvent insurer, which is also a covered claim under this chapter, shall exhaust first his rights under such policy. Any amount payable on a covered claim under this chapter shall be reduced by the amount of any recovery under such insurance policy.
      “(2) Any person having a claim which may be recovered under more than one insurance guaranty association or its equivalent having a like function to that of said association shall seek recovery first from the association operating in the area of the residence of the insured except that if it is a first party claim for damage to property with a permanent location, such person shall seek recovery first from the association operating in the location of the property, and if it is a workers’ compensation claim, he shall seek recovery first from the association operating in the area of the residence of the claimant. Any recovery under this chapter shall be reduced by the amount of recovery from any other insurance guaranty association or its equivalent having a like function to that of said association.”

       CIGA relies upon Palmer v. Montana Ins. Guaranty Assn., 779 P.2d 61 (Mont. 1989), which held that a tort victim whose damages exceeded $1,000,000 after the tortfeasor’s carrier became insolvent, could not recover from the Montana Insurance Guaranty Association after having received a payment of $300,000 from the Idaho Insurance Guaranty Fund. The court relied upon a specific statutory provision that reduced the Montana association’s obligation by the amount of recovery from any other guaranty association or its equivalent. A similar provision is contained in General Statutes § 38-282 (2). UCC has had no recovery on its claim for indemnification based on the insolvent policies.
      CIGA also cites Blackwell v. Pennsylvania Ins. Guaranty Assn., 567 A.2d 1103 (Pa. Super. 1989), in which a recovery of $65,000 from uninsured motorist carriers was deducted from the sum otherwise payable by the Pennsylvania association, after the tortfeasor’s liability carrier became insolvent. Again, UCC has received no payment on its claim for indemnification against its insolvent insurers.


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Nancy C. Hirtle v. Robert L. Hirtle, Jr.
    (14008)
    Peters, C. J., Shea, Callahan, Glass and Ment, Js.
    Argued December 5, 1990
    decision released February 12, 1991

      Louis Kiefer, for the appellant (plaintiff).

      Susan M. Cormier, with whom was Wesley W. Horton, for the appellee (defendant).
   Peters, C. J.

This case concerns the validity of a stipulated judgment modifying the provision of a dissolution judgment that had previously obligated one of the parties to pay postmajority support for the parties’ children. The plaintiff, Nancy C. Hirtle, filed a four count motion asking that the defendant, Robert L. Hirtle, Jr., be held in contempt for failing to pay child support as well as various other financial obligations stipulated in their modified dissolution judgment. The trial court, Steinberg, J., without making a finding of contempt, ordered the defendant to pay $2300 for support calculated at the rate set in the modified judgment. After a rehearing at the defendant’s request, the court limited the support arrearage to the lesser rate set in the original judgment. The plaintiff appealed this reduction in the support order to the Appellate Court. We transferred her appeal here in accordance with the provisions of Practice Book § 4023 and now reverse.

The underlying facts are established by the record. In 1980, the trial court, Cohen, J., rendered a judgment dissolving the marriage of the parties. The decree of dissolution incorporated a written separation agreement between the parties specifying that the defendant would “pay to the plaintiff as child support, the sum of $35.00 per week per child, a total of $70.00 per week commencing February 15, 1980. If either child is enrolled as a full time college student in a baccalaureate program, [the] defendant shall continue to pay the aforesaid support to [the] plaintiff for such child for each full week of actual residence by said child with [the] plaintiff.” While paying support for the two children, the defendant had “the exclusive right to claim each child as an exemption for federal and state income tax purposes.” The decree of dissolution also obligated the defendant to pay the plaintiff alimony in the amount of $150 per week, until the defendant reached the age of sixty-five or until the plaintiff remarried or died.

A stipulated judgment rendered on September 18, 1984, by the court, F. X. Hennessy, J., modified, in part, the terms of the 1980 decree of dissolution. Because of the plaintiffs remarriage, her alimony was terminated. The modified decree of dissolution further provided that: “The support order for the child Robin is modified so that the new support order is $115 for her support weekly.” Robin, the parties’ younger daughter, was then still a minor. No appeal was taken from this stipulated judgment.

The defendant stopped paying child support for Robin when she became eighteen. The plaintiff then brought the present proceedings asking that the defendant be held in contempt for his failure to honor his financial obligations under the modified decree of dissolution. In calculating the amount of child support to which the plaintiff was entitled, the trial court, Steinberg, J., first awarded her $115 per week, in accordance with the modified decree of dissolution. After reargument, however, the court limited her recovery to $35 per week in accordance with the terms of the original, unmodified decree of dissolution. The trial court based its revised conclusion on two grounds. It determined that no court had the authority to modify postmajority support without an express written agreement of the parties and that the September 18, 1984 stipulated judgment did not manifest a written agreement of the parties for postmajority support.

The plaintiffs appeal raises three issues. She maintains that the trial court: (1) exceeded its authority in granting the defendant’s motion to open and reargue; (2) mistakenly concluded that it lacked independent authority to modify the defendant’s obligation to provide postmajority support for his daughter; and (3) mistakenly found that the September, 1984 modification did not incorporate an agreement by the defendant to pay postmajority support to his daughter. We agree with the trial court’s resolution of the first two issues, but not with its disposition of the third.

I

The plaintiff maintains that the trial court, having rendered a final judgment on November 27,1989, that the defendant owed a child support arrearage in the amount of $115 per week, lacked the authority thereafter to grant the defendant’s motion, dated December 12,1989, to open the judgment and to reargue. The plaintiff contends that a valid motion to open a judgment and to reargue requires at least an allegation that the moving party is relying upon newly discovered evidence not previously discovered or discoverable. We disagree.

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. TLC Development, Inc. v. Planning & Zoning Commission, 215 Conn. 527, 533-34, 577 A.2d 288 (1990); 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). The present record does not demonstrate that the trial court acted unreasonably or in clear abuse of its discretion.

II

The plaintiff next maintains that the trial court misconstrued the statutory and case law authority governing support agreements for children past the age of majority. Contrary to the ruling of the trial court, the plaintiff contends that a court has jurisdiction to modify an agreement for postmajority support even where the parties have not agreed in writing to such a modification. We agree with the trial court’s holding that General Statutes § 46b-66 requires agreements for the modification of postmajority support to be in writing.

The 1977 amendment to § 46b-66 was a legislative response to our holding, in Sillman v. Sillman, 168 Conn. 144,150, 358 A.2d 150 (1975); see also Kennedy v. Kennedy, 177 Conn. 47, 49-50, 411 A.2d 25 (1979); Simon v. Simon, 170 Conn. 24, 363 A.2d 1054 (1975); that the Superior Court’s jurisdiction to make orders of child support extended only to minor children. “The purpose of the amendment was to ensure that a written agreement involving support for adult children and submitted to the court by the parties in connection with an action for a dissolution of marriage could be incorporated into the judgment or orders of the court, thereby making such orders enforceable through contempt proceedings.” Arseniadis v. Arseniadis, 2 Conn. App. 239,244, 477 A.2d 152 (1984); Albrecht v. Albrecht, 19 Conn. App. 146, 154, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989).

Although General Statutes § 46b-86 (a) confers authority upon the Superior Court to modify “any final order” for the payment of support, that authority must be read in conjunction with the jurisdictional limitations imposed by § 46b-66. As the Appellate Court held in Albrecht v. Albrecht, supra, 155-57, the same jurisdictional rules apply to the incorporation of an order for postmajority support in the original dissolution proceedings as to a subsequent order modifying postmajority support. In both cases, § 46b-66 requires a written agreement of the parties.

The decision of this court in Barnard v. Barnard, 214 Conn. 99,115, 570 A.2d 690 (1990), does not compel a different conclusion. In that case, the issue was whether, as § 46b-86 (a) expressly permits, the parties had effectively precluded any subsequent modification of postmajority support by the terms of the separation agreement that had been incorporated into the decree dissolving their marriage. In that context, we noted that the postmajority support order could be judicially modified “only if the agreement so incorporated does not preclude modification.” Id., 114. Our repeated citations of Albrecht v. Albrecht, supra, indicate that we did not intend to foreclose the consideration of other constraints on the validity of a modification of a post-majority support order. Barnard v. Barnard, supra, 113-14. We therefore concur with the Appellate Court in Albrecht v. Albrecht, supra, and with the trial court in this case, that a written agreement is a jurisdictional prerequisite to the valid modification of an order for postmajority support.

Ill

The plaintiff finally challenges the finding of the trial court that the parties had not agreed to a written modification of the defendant’s obligation to provide postmajority support for his younger daughter. We agree with the plaintiff that this finding cannot be sustained.

In addressing this question, we need to recall the procedural context in which it is raised. In 1984, the defendant, himself an attorney, agreed through counsel to a stipulated judgment modifying the amount of his obligation to pay postmajority support. He took no appeal from that stipulated judgment, and even now does not allege that it was obtained by fraud, duress, accident or mistake. Connecticut Pharmaceutical Assn. v. Milano, 191 Conn. 555, 558, 468 A.2d 1230 (1983); Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 466, 440 A.2d 159 (1981); Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980). He has never filed a motion to modify its terms. Instead, he now resists its enforcement by a collateral attack on its validity. Final judgments are, however, presumptively valid; Lampson Lumber Co. v. Hoer, 139 Conn. 294, 298, 93 A.2d 143 (1952); Coit v. Haven, 30 Conn. 190, 197-98 (1861); Robertson v. Fazzalaro, 33 Conn. Sup. 569, 573-74, 363 A.2d 755 (1976); and collateral attacks on their validity are disfavored. Santora v. Miklus, 199 Conn. 179, 188, 506 A.2d 549 (1986); Monroe v. Monroe, 177 Conn. 173,177-78, 413 A.2d 819 (1979), appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979); 1 Restatement (Second), Judgments (1982) §12.

The defendant’s collateral attack can be sustained only if the record demonstrates that the trial court, F.X. Hennessy, J., had no subject matter jurisdiction to increase the defendant’s support obligation because the court was never presented a written agreement of modification. Since “[jjurisdictional facts are conclusively presumed in domestic courts of general jurisdiction, even when not found by the court, unless the record itself shows the contrary”; Robertson v. Fazzalaro, supra, 573; it was the defendant’s burden to prove the existence of a jurisdictional deficiency. Cf. Packer Plastics, Inc. v. Laundon, 214 Conn. 52, 57, 570 A.2d 687 (1990). Accordingly, the defendant cannot prevail if there is an absence of evidence to establish whether the stipulated judgment modifying the terms of the dissolution decree was grounded in the written agreement of the parties.

The evidence proffered to show a lack of jurisdiction was the record of the proceedings before Judge Hennessy. Although the defendant testified, in the proceedings before Judge Steinberg, that he had participated in oral discussions antecedent to the modified judgment, he acknowledged that he had not been present in court at the time of the stipulated judgment. He therefore had no personal knowledge of what had transpired. The court record consists of the concededly skeletonic description of the terms of the modified judgment, initialed by M.H. and signed “Hennessy, J.,” and the transcript of the proceedings before Judge Hennessy. The transcript reveals the following. After verifying the presence of counsel for the parties, the court stated: “[TJhe agreement has been given to me by the parties as to the judgment of April 9th, 1980, [which] is modified as follows: Alimony award entered therein is terminated because the plaintiff has remarried. The support order for the child Robin is modified so that the new support order is one hundred and fifteen dollars for her support weekly. Is that the agreement, gentlemen?” Upon obtaining the assent of counsel, the court then stated: “It is so ordered.” Notably, the court, relying upon “the agreement . . . given to me,” itself stated the terms of the modification, rather than inviting an oral recital by counsel.

On this meager record, the defendant has failed to overcome the presumption that Judge Hennessy was reading from a written document when he described the terms of the modified support order to which the parties had agreed. The modified judgment of post-majority support has therefore not been shown to be jurisdictionally defective.3 **** Further proceedings will be required to determine the amount of the defendant’s arrearage in accordance with the terms of the modified judgment.

The judgment is reversed and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       The plaintiff sought, in addition, to be reimbursed for specified medical expenses, wedding expenses and educational expenses for their children, as well as for attorney’s fees associated with her request for reimbursement.

       The court also ordered the defendant to pay the plaintiff a stipulated sum toward wedding expenses, and for her attorney’s fees. This part of the trial court’s order has not been appealed.

       The defendant filed a statement pursuant to Practice Book § 4013 (1) seeking appellate review of the following issue: “Did the trial court err in holding that the modification entered on September 18,1984, did not eliminate any postmajority weekly support requirements in the original judgment?” In oral argument in this court, defense counsel expressly conceded that the defendant was no longer contesting the trial court’s factual finding that there had been an oral agreement, before Judge Hennessy, to increase postmaturity child support to $115 a week.

       Practice Book § 326 provides, in relevant part: “setting aside or opening judgments. 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 succeeding the date on which it was rendered or passed. The parties may waive the provisions of this paragraph or otherwise submit to the jurisdiction of the court.”
      General Statutes § 52-212a is virtually identical in language to Practice Book § 326.

       General Statutes § 46b-66 provides, in relevant part: “review of agreements; INCORPORATION into DECREE. In any case under this chapter where the parties have submitted to the court an agreement concerning the . . . support of any of their children . . . the court shall . . . determine whether the agreement of the spouses is fair and equitable under all the circumstances. If the court finds the agreement fair and equitable, it shall become part of the court file, and if the agreement is in writing, it shall be incorporated by reference into the order or decree of the court. ... If the agreement is in writing and provides for the . . . support of a child beyond the age of eighteen, it may also be incorporated or otherwise made a part of any such order and shall be enforceable to the same extent as any other provision of such order or decree, notwithstanding the provisions of section l-2d.”

       General Statutes § 46b-86 provides, in relevant part: “modification of alimony OR support orders and judgments, (a) Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support . . . may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party.”

       The initials corresponded with the initials of Maxwell Heiman, who was the defendant’s attorney at that time.

       Although the trial court’s invalidation of the modified support order rested on the absence of a written agreement, the defendant’s appellate brief suggests that such an agreement must be signed by the parties, as well as written, and that the authority of the defendant’s attorney at the time of the modification must be independently established. The procedural propriety of these claims is doubtful, the defendant having failed to raise them in a properly filed statement pursuant to Practice Book § 4013 (a). On their merits, we know of no authority, nor has the defendant cited any, that would elevate such claims to jurisdictional status for the purposes of a collateral attack on a judgment.
      The defendant also argues, in his brief, that the modified judgment of support, as a matter of interpretation, was not intended to include post-majority support, and that the trial court erroneously found to the contrary. Although a Practice Book § 4013 (a) statement was timely filed to raise this issue, it was abandoned at oral argument. See footnote 3, supra.


author: Hull, J.

text:
    State of Connecticut v. John M. Leary et al.
    (14051)
    Peters, C. J., Shea, Covello, Hull and Borden, Js.
    Argued October 30, 1990
    decision released February 12, 1991

      Barry N. Silver, with whom, on the brief, was Alan E. Silver, for the appellants (defendants).

      Neil G. Fishman, assistant attorney general, with whom was Robert M. Langer, assistant attorney general, for the appellee (plaintiff).
   Hull, J.

This appeal involves an action by the plaintiff, the state of Connecticut, alleging that the defendants, John M. Leary and Tickets Today, Inc., had violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The trial court determined that the defendants had violated General Statutes § 42-110b (a) by selling admission tickets to various entertainment events in violation of General Statutes § 53-289, and granted the plaintiffs request for injunctive relief, restitution and a civil penalty. We affirm.

The following facts are undisputed. On July 2,1986, at the request of the commissioner of consumer protection (commissioner), the attorney general applied to the Superior Court on behalf of the plaintiff, pursuant to General Statutes § 42-110m, for an order: (1) permanently enjoining the defendants from violating § 53-289 by selling admission tickets to various entertainment events at prices in excess of three dollars over their face value; (2) directing the defendants to pay restitution to consumers injured as a result of such sales; and (3) directing the defendants to pay a civil penalty to the plaintiff pursuant to General Statutes § 42-110o (b). On October 26,1986, the trial court enjoined the defendants from further noncompliance with § 53-289 until further order of the court.

Having previously filed a joint statement of material facts not in dispute, the plaintiff and the defendants filed cross motions for summary judgment. In support of their motion, the defendants claimed that: (1) the plaintiffs action was improperly commenced; (2) the additional charges levied by the defendants in the sale of tickets were delivery charges which are not prohibited by § 53-289; and (3) § 53-289 violates the equal protection provisions of the federal and state constitutions.

The trial court denied the cross motions for summary judgment, stating that because “§ 53-289 . . . does not prohibit a delivery charge in excess of three dollars if [the] same is reasonable and substantiated by the facts,” there was a genuine issue as to a material fact, specifically, whether the excess charges levied by the defendants were truly delivery charges as asserted, or service charges in violation of § 53-289. Thereafter, a hearing was held on the issues presented by the cross motions for summary judgment.

The trial court found that the excess charges to consumers “were not based on the cost of delivery, that being mailing costs or mileage to make the delivery, but were based on the quality of the ticket in terms of location, desirability of the seat and costs for procurement of [the] same. . . . Based on the evidence presented, the defendants’ delivery charge is a sham and a subterfuge for the scalping of tickets in violation of Section 53-289 of the Connecticut General Statutes.” The court also determined that the action had been commenced properly pursuant to General Statutes §§ 3-125 and 42-110m. Nevertheless, the court denied the cross motions for summary judgment a second time, because it could not resolve the defendants’ equal protection claim without further evidence.

Thereafter, following a hearing on the equal protection issue, the trial court determined that since the purpose of § 53-289 was legitimate and the statute was designed to accomplish that purpose in a fair and reasonable way, the defendants had failed to sustain their burden of establishing their claim of unconstitutionality. Accordingly, the court granted the plaintiffs motion for summary judgment and denied the cross motion of the defendants. Following a hearing in damages, the trial court granted the plaintiffs request for permanent injunctive relief and ordered the defendants to pay restitution to injured consumers and a civil penalty to the plaintiff.

The defendants appealed the judgment to the Appellate Court. We subsequently transferred the appeal to this court pursuant to Practice Book § 4023.

The defendants claim that: (1) § 53-289 violates the equal protection provisions of the federal and state constitutions; (2) the trial court’s finding that the additional charges levied by the defendants were prohibited by § 53-289 was .erroneous and in violation of the defendants’ rights to due process of law; (3) the plaintiff commenced the action against the defendants improperly and, therefore, it is invalid; and (4) § 42-11 Ob (a) of CUTPA is unconstitutionally vague and overbroad.

I

The defendants’ first claim is that § 53-289 violates the equal protection provisions of the federal and state constitutions. According to the defendants, because § 53-289 permits the owners of property on which entertainment events are held to authorize any person to sell tickets at a price greater than that generally permitted under the section, the section grants benefits to a select group of individuals in violation of the defendants’ rights to equal protection of the laws. We do not agree.

“ ‘ “The equal protection provisions of the federal and state constitutions have the same meaning and limitations.” ’ Daily v. New Britain Machine Co., [200 Conn. 562, 577, 512 A.2d 893 (1986)]; see also Keogh v. Bridgeport, 187 Conn. 53, 66, 444 A.2d 225 (1982); Caldor’s, Inc. v. Bedding Barn, Inc., 177 Conn. 304, 314, 417 A.2d 343 (1979); Miller v. Heffernan, 173 Conn. 506, 516-17, 378 A.2d 572 (1977), appeal dismissed, 434 U.S. 1057, 98 S. Ct. 1226, 55 L. Ed. 2d 758 (1978).” Ecker v. West Hartford, 205 Conn. 219, 237, 530 A.2d 1056 (1987). “ ‘In the case of economic regulation, the test to determine constitutionality is well established in our cases. . . .’” Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 26, 523 A.2d 467 (1987). “ ‘[A]n act regulating economic activity must bear a reasonable relationship to a proper legislative purpose in a manner that is neither arbitrary nor discriminatory. Carroll v. Schwartz, 127 Conn. 126,130,14 A.2d 754 (1940). “The court’s function ... is to decide whether the purpose of the legislation is a legitimate one and whether the particular enactment is designed to accomplish that purpose in a fair and reasonable way. If an enactment meets this test, it satisfies the constitutional [requirement] of . . . equal protection.” Pierce v. Albanese, 144 Conn. 241, 249,129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S. Ct. 36, 2 L. Ed. 2d 21 (1957). . . .’ ” Blue Sky Bar, Inc. v. Stratford, supra, 26-27.

“The party attacking [the constitutionality of] a validly enacted statute . . . bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt . . . State v. Breton, 212 Conn. 258, 269, 562 A.2d 1060 (1989); Zapata v. Burns, 207 Conn. 496, 507-508, 542 A.2d 700 (1988). We will indulge in every presumption in favor of the statute’s constitutionality; State v. Breton, supra; and, when called upon to interpret a statute, “we will search for an effective and constitutional construction that reasonably accords with the legislature’s underlying intent.” Id.; McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 705-706, 553 A.2d 596 (1989). These principles of statutory construction apply equally to criminal and to civil statutes. State v. Breton, supra.

Section 53-289 provides in pertinent part: “No person shall sell, offer for sale or attempt to sell any ticket, privilege or license of admission to an entertainment event, including, but not limited to, any place of amusement, arena, stadium, theater, performance, sport, exhibition or athletic contest given in this state, at a price greater than the price, including tax, printed thereon, or at a price greater than the price fixed for admission, including tax, and a reasonable service charge for services actually rendered not to exceed three dollars. The owner or operator of the property on which such entertainment event is to be held or is being held may authorize, in writing, any person to sell such ticket, privilege or license of admission at a price in excess of that authorized under this section. Such writing shall specify the price for which such ticket, privilege or license of admission is to be sold. Any person violating any provision of this section shall be guilty of ticket scalping.”

The trial court determined that “[t]he legislative history of section 53-289 indicates that the statute was enacted for the purpose of (1) promoting equal and fair access to public events; (2) protecting the public from outrageous tickets prices; and (3) preventing the loss of proceeds realized by ticket scalpers which are denied the performing artists, the local economy and major civic centers.” See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 4, 1983 Sess., p. 1441. The defendants do not challenge the legitimacy of this purpose. Rather, they claim that § 53-289 fails to advance this purpose, and further, that the exemption that it creates for owners and their licensees, contravenes the statute’s purpose by effectively legalizing ticket scalping and creating a monopoly on the sale of tickets.

“The legislature, cognizant of the constitutional guarantees of equal protection, must be deemed to have sought to attain a rational and sensible result that avoids placing [the] statute in constitutional jeopardy. Peck v. Jacquemin, 196 Conn. 53, 63-64, 491 A.2d 1043 (1985); Moscone v. Manson, 185 Conn. 124, 128, 440 A.2d 848 (1981).” State v. Jenkins, 198 Conn. 671, 679, 504 A.2d 1053 (1986). It would be unreasonable to infer, as the defendants suggest, that the General Assembly enacted § 53-289 in order to protect the public from the ill effects caused by ticket scalping, but at the same time, believed there was any real possibility that owners of property where entertainment events are held would be likely to engage in or to authorize ticket scalping. “We must reject [this] interpretation . . . that would have the statute operate in a way that is 'difficult and possibly bizarre.’ State v. Blasko, [202 Conn. 541, 558-59, 522 A.2d 753 (1987)]; Maciejewski v. West Hartford, 194 Conn. 139, 152, 480 A.2d 519 (1984).” Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 593, 522 A.2d 771 (1987). A more reasonable interpretation is that the legislature concluded that since an owner is free to enter into contractual relations regarding the price of tickets for his own pecuniary benefit, the exemption was appropriate, and that owners would not authorize others to sell tickets at an unreasonable markup, because they could have charged virtually any price at the outset. Moreover, in the rare event that an owner should greatly underprice his tickets in relation to the demand and later attempt to make an additional profit by authorizing a grossly excessive markup, it is likely that such a practice would have harmful repercussions on further patronage of the establishment that would discourage its repetition.

The legislature could reasonably have relied on market forces that affect owners of entertainment facilities differently from fly-by-night ticket scalpers in deciding to regulate only the markup charged by the latter. The legislative history of § 53-289 contains no reference to excessive markups by owners or their authorized ticket agents, while it is replete with instances of ticket scalping by others. It is not a violation of the principle of equal protection for a statute to address only those concerns for which a need of regulation has been demonstrated. See Warner v. Leslie-Elliott Constructors, Inc., 194 Conn. 129,135,479 A.2d 231 (1984). We conclude, therefore, that the defendants have not met their burden of establishing that § 53-289 bears no rational relationship to a legitimate objective, in violation of the equal protection provisions of the federal and state constitutions.

II

The defendants’ second claim is that because delivery charges are excluded from the prohibition of § 53-289, and “there was no factual dispute that the additional charges added to the price of a ticket by the [defendants] was a delivery charge based upon costs incurred by them in procuring and placing those tickets in the buyer’s hand,” the trial court’s conclusion that the defendants violated § 53-289 was erroneous and in violation of their rights to due process of law. This claim is without merit.

Contrary to the defendants’ assertion, there was a factual dispute as to whether the additional charges were “delivery charges.” The joint statement of material facts not in dispute states that “[t]he defendants have characterized this additional cost [over face value of the tickets] as a ‘delivery’ charge.” (Emphasis added.) Moreover, the trial court expressly predicated its denial of the cross motions for summary judgment on its conclusion that the question “[wjhether or not the additional costs were a delivery charge or simply a service charge in excess of three dollars . . . in violation of Section 53-289 . . . is a question of fact which cannot be decided by a Motion for Summary Judgment.”

The trial court found that the additional charges by the defendants were not based on the cost of delivery, such as mailing costs or mileage, but rather, were costs based on the quality of the ticket, in terms of the location and desirability of the seat it represented, and the costs for procuring that seat. The defendants did not challenge this evidentiary finding in the trial court. “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial.” Practice Book § 4185. We, therefore, decline to address this claim further.

Ill

The defendants’ third claim is that the action against them was invalid because it was commenced improperly pursuant to General Statutes § 42-110m. According to the defendants, because the instant action was initiated by the commissioner at the suggestion of the attorney general rather than as a result of consumer complaints, the commissioner did not have reason to believe that the defendants had been engaged in an alleged violation of CUTPA and lacked any grounds to bring the action. We do not agree.

Section 42-110m (a) provides in pertinent part: “Whenever the commissioner has reason to believe that any person has been engaged or is engaged in an alleged violation of any provision of this chapter said commissioner may proceed as provided in section 42-110d and section 42-110e or may request the attorney general to apply in the name of the state of Connecticut to the superior court for [an] order temporarily or permanently restraining and enjoining the continuance of such act or acts or for an order directing restitution and the appointment of a receiver in appropriate instances, or both.”

It is undisputed that the investigation by the commission of consumer protection (commission) into the sales activities of the defendants was in response to the attorney general’s suggestion to the commission that such an investigation might be prudent. Moreover, at the time that the action was commenced under § 42-110m, no consumer complaints had been filed concerning the defendants. Nonetheless, during one of the hearings on the cross motions for summary judgment, an investigator for the commission testified that prior to the commencement of the action, he had submitted a report to the commissioner stating that: (1) he had spoken with the defendant Leary regarding ticket sales by the defendants, and Leary had stated that the fact that he was charging what he referred to as a delivery charge was not in violation of § 53-289 as he understood the law; (2) Leary had also stated that many others were doing the same thing; (3) subsequent to the conversation with Leary, the investigator had received, by mail, an unsigned, typewritten list identifying ten companies, including the defendant Tickets Today, Inc.; and (4) on the basis of his investigation, the investigator believed that Leary had sent the list to him, and that there was an industry wide practice of selling tickets in excess of three dollars over face value in violation of § 53-289.

The defendants have brought forth no authority for their assertion that the commissioner’s belief under § 42-110m must derive from consumer complaints rather than from a recommendation by the attorney general. The language of § 42-110m sets forth no such requirement, and “ ‘ “[i]t is not the function of courts to read into clearly expressed legislation provisions which do not find expression in its words . . . .” ’ (Citations omitted.) Mozzochi v. Glastonbury, 188 Conn. 276, 279, 449 A.2d 173 (1982).” State v. Whiteman, 204 Conn. 98, 103, 526 A.2d 869 (1987).

Furthermore, the defendants have failed to establish their claim that “no facts existed prior to the bringing of this action to support a belief that the [defendants] were engaged in any ‘unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.’ ” Both the recommendation of the attorney general and the report of the commission’s investigator were received by the commission prior to the commencement of the action. The defendants have not shown that this evidence was insufficient to sustain the commissioner’s belief that the defendants had been or were engaged in an alleged violation of CUTPA. We conclude, therefore, that the trial court reasonably determined that there was a sufficient factual foundation to warrant the commissioner’s action pursuant to § 42-110m.

IV

The defendants’ final claim is that § 42-110b of CUTPA is unconstitutionally vague and overbroad. We are unpersuaded.

A

The defendants failed to raise their void for vagueness claim in the trial court. Because they claim that their constitutional rights to due process of law are involved, the defendants presumably seek review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

“[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

“It is the appellant’s responsibility to provide this court with a record adequate to review his claim of error. State v. Anderson, 209 Conn. 622, 633, 553 A.2d 589 (1989); State v. Crumpton, 202 Conn. 224, 231, 520 A.2d 226 (1987). This the defendants] [have] failed to do.” State v. Carpenter, 214 Conn. 77, 86, 570 A.2d 203 (1990).

“As a matter of the due process of law required by our federal and state constitutions, ‘a penal statute must be sufficiently definite to enable a person to know what conduct he must avoid.’ State v. Pickering, 180 Conn. 54, 59-60,428 A.2d 322 (1980); Buckley v. Valeo, [424 U.S. 1, 77, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976)]; United States v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, 98 L. Ed. 989 (1954); State v. Eason, 192 Conn. 37, 46, 470 A.2d 688 (1984) [overruled on other grounds, Paulsen v. Manson, 203 Conn. 484, 491, 525 A.2d 1315 (1987)]. The void for vagueness doctrine ‘requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent “arbitrary and discriminatory enforcement.” ’ Smith v. Goguen, 415 U.S. 566, 572-73, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974).” State v. Proto, 203 Conn. 682, 696, 526 A.2d 1297 (1987).

“[I]n non-first amendment contexts, ‘the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute’s applicability to the particular facts at issue.’ State v. Pickering, supra, 57; United States v. Powell, 423 U.S. 87, 92, 96 S. Ct. 316, 46 L. Ed. 2d 228 (1975); United States v. Harriss, supra.” State v. Proto, supra, 696-97. On the basis of the undeveloped record in this case, it is impossible to determine whether the defendants were sufficiently made aware of what conduct they had to avoid. Due to the inadequate record, therefore, we decline to review this claim on appeal. State v. Golding, supra, 240.

B

The defendants claim that since § 42-110b might be interpreted by a person of ordinary intelligence to prohibit forms of speech that are in fact, constitutionally protected, it is unconstitutionally overbroad on its face. The defendants failed to raise their claim of over-breadth in the trial court, but in light of our disposition, we need not address whether the claim is reviewable under State v. Evans, supra, pursuant to which we presume the defendants seek review.

Under the doctrine of overbreadth “a person may challenge a statute that infringes protected speech even if the statute constitutionally might be applied to him.” Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 462 n.20, 98 S. Ct. 1912, 56 L. Ed. 2d 444, reh. denied, 439 U.S. 883, 99 S. Ct. 226, 58 L. Ed. 2d 198 (1978); see 3 R. Rotunda, J. Nowak & J. Young, Constitutional Law Substance and Procedure § 20.8, p. 24; compare United States v. Raines, 362 U.S. 17,21, 80 S. Ct. 519, 4 L. Ed. 2d 524 (1960) (in non-first amendment contexts, “one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional”). Nevertheless, because “ ‘the justification for the application of over-breadth analysis applies weakly, if at all, in the ordinary commercial context . . Ohralik v. Ohio State Bar Assn., supra, quoting Bates v. State Bar of Arizona, 433 U.S. 350, 380, 97 S. Ct. 2691, 53 L. Ed. 2d 810, reh. denied, 434 U.S. 881, 98 S. Ct. 242, 54 L. Ed. 2d 164 (1977); “decisions dealing with more traditional First Amendment problems do not extend automatically to this as yet uncharted area [commercial speech]. See, e.g., [Ohralik v. Ohio State Bar Assn., supra, 462 n.20] (overbreadth analysis not applicable to commercial speech).” Friedman v. Rogers, 440 U.S. 1,11 n.9, 99 S. Ct. 887, 59 L. Ed. 2d 100, reh. denied, 441 U.S. 917, 99 S. Ct. 2018, 60 L. Ed. 2d 389 (1979); see 3 R. Rotunda, J. Nowak & J. Young, supra, § 20.8, pp. 29-30. Section 42-110b regulates “acts or practices in the conduct of any trade or commerce.” We conclude, therefore, that the overbreadth doctrine does not apply in this case.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 42-110b (a) provides: “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

       General Statutes § 53-289 provides: “No person shall sell, offer for sale or attempt to sell any ticket, privilege or license of admission to an entertainment event, including, but not limited to, any place of amusement, arena, stadium, theater, performance, sport, exhibition or athletic contest given in this state, at a price greater than the price, including tax, printed thereon, or at a price greater than the price fixed for admission, including tax, and a reasonable service charge for services actually rendered not to exceed three dollars. The owner or operator of the property on which such entertainment event is to be held or is being held may authorize, in writing, any person to sell such ticket, privilege or license of admission at a price in excess of that authorized under this section. Such writing shall specify the price for which such ticket, privilege or license of admission is to be sold. Any person violating any provision of this section shall be guilty of ticket scalping. Ticket scalping is a class C misdemeanor for a first offense, a class A misdemeanor for a second offense and a class D felony for any subsequent offense. The sale of each ticket, privilege or license of admission in violation of any provision of this section shall constitute a separate offense.”

       General Statutes § 42-110m provides in pertinent part: “(a) Whenever the commissioner has reason to believe that any person has been engaged or is engaged in an alleged violation of any provision of this chapter said commissioner may proceed as provided in section 42-110d and section 42-110e or may request the attorney general to apply in the name of the state of Connecticut to the superior court for [an] order temporarily or permanently restraining and enjoining the continuance of such act or acts or for an order directing restitution and the appointment of a receiver in appropriate instances, or both. . . .”

       General Statutes § 42-110o (b) provides: “In any action brought under section 42-110m, if the court finds that a person is wilfully using or has wilfully used a method, act or practice prohibited by section 42-110b, the attorney general, upon petition to the court, may recover, on behalf of the state, a civil penalty of not more than two thousand dollars for each violation. For purposes of this subsection, a wilful violation occurs when the party committing the violation knew or should have known that his conduct was a violation of section 42-110b.”

       General Statutes § 3-125 provides in pertinent part: “The attorney general shall have general supervision over all legal matters in which the state is an interested party, except those legal matters over which prosecuting officers have direction. He shall appear for the state, the governor, the lieutenant governor, the secretary, the treasurer and the comptroller, and for all heads of departments and state boards, commissioners, agents, inspectors, committees, auditors, chemists, directors, harbor masters, high sheriffs or their chief deputies . . . and institutions and for the state librarian in all suits and other civil proceedings . . . and for all members of the state house of representatives and the state senate in all suits and all other civil proceedings brought against them involving their official acts .... All legal services required by such officers and boards in matters relating to their official duties shall be performed by the attorney general or under his direction.”

       The fourteenth amendment to the United States constitution provides in pertinent part: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” The defendants also rely on the Connecticut constitution, article first, § 1, which provides: “[A]ll men when they form a social compact, are equal in rights; and no man, or set of men are entitled to exclusive public emoluments or privileges from the community.”

       See remarks of Senator Howard T. Owens, Jr., regarding ticket scalping, 26 S. Proc., Pt. 8, 1983 Sess., pp. 2747-49, and Pt. 14, pp. 4971-73; testimony of Attorney General Joseph I. Lieberman, Conn. Joint Standing Committee Hearings, Judiciary, Pt. 4, 1983 Sess., pp. 1495-1505.