author: Peters, C. J.

text:
    Brian T. Scott v. State Bar Examining Committee
    (14210)
    Peters, C. J., Shea, Callahan, Glass and Borden, Js.

      Argued November 7, 1991
    decision released January 14, 1992

      DanE. LaBelle, with whom, on the brief, was Thomas P. Moriarty, for the appellant (respondent).

      David J. Laudano, with whom, on the brief, was Raymond W. Ganim, for the appellee (petitioner).
   Peters, C. J.

The dispositive issue in this appeal is the scope of the Superior Court’s authority to review the decision of the Connecticut bar examining committee denying an applicant’s admission to the bar. After receiving the application of the petitioner, Brian T. Scott, to take the state bar examination and for admission to the bar of this state, and after he had passed the bar examination, the Fairfield county committee on admission to the bar (standing committee) interviewed him, and voted unanimously to recommend that he be admitted to the bar. Thereafter, however, the respondent bar examining committee (BEC), through its executive committee, conducted its own investigation and, upon finding that the petitioner did not possess the present good moral character and the requisite fitness for admission to the bar, rejected his application for admission. The petitioner sought review in the Superior Court, claiming that the BEC had acted arbitrarily, unreasonably or in abuse of its discretion in making its decision. The trial court, Hon. Irving Levine, state trial referee, rendered a judgment ordering the petitioner admitted to the bar after concluding that the “[BEC] could not fairly and reasonably have reached the conclusion that it did.” From that judgment, the BEC appealed to the Appellate Court and, pursuant to Practice Book § 4023, we transferred the appeal to this court. We reverse the judgment of the trial court.

The record, briefs and appendices of the parties reveal the following facts. The petitioner used marihuana from 1977 to 1985, a period of eight years. This period of drug use resulted in numerous arrests and three convictions for possession of marihuana and controlled substances. Although the petitioner had dropped out of high school in his junior year, he subsequently received his high school graduate equivalency diploma. He began taking courses at the University of Bridgeport and eventually graduated with a bachelor’s degree. He then enrolled at the University of Bridgeport law school and received a law degree.

Following graduation from law school, the petitioner filed an application to take the bar examination and for admission to the bar. He properly revealed his criminal record on the application. The petitioner took the state bar examination on July 29 and 30, 1987. On November 6,1987, the BEC notified the petitioner that he had passed the examination; however, on November 19, 1987, it advised the petitioner that he was ineligible for admission to the bar. On December 23, 1987, three members of the standing committee conducted a hearing in which the petitioner was questioned about his prior drug use and criminal record. On January 11,1988, the standing committee notified the petitioner that it had voted unanimously to approve his admission to the state bar. Soon thereafter the BEC notified the petitioner that its executive committee intended to hold a factfinding hearing, on February 19, 1988, concerning his qualifications for admission to the bar. The notice informed the petitioner that the specific area of inquiry was to be his criminal record. It further advised the petitioner that he could bring an attorney as well as “any documents or witnesses relevant to the area of inquiry” but that “[gjeneral character witnesses [would] not be permitted.” The petitioner appeared without counsel and responded to extensive questioning.

On May 20,1988, the members of the executive committee voted unanimously to deny the petitioner admission to the bar. Each voting member placed the reason for Ms vote on the record. The minutes reflect that one member found that the petitioner’s “explanation of the facts and events involving Ms criminal prosecution confirmed in [the member’s] mind the belief that the [petitioner’s] testimony before the executive committee . . . was not credible.” Another member “was of the opinion that the applicant displayed a lack of candor and did not appreciate the importance of Ms testimony” at the hearing. The final member’s “opinion that the applicant was unfit to practice law . . . was based upon the applicant’s conviction in three criminal cases involving illegal substance abuse.” The BEC notified the petitioner that it found Mm to be lacking the present good moral character and the requisite fitness for admission to the bar, and that it therefore was rejecting his application for admission to the bar. The petitioner then filed a petition with the Superior Court, which, without .hearing any additional testimony, ordered his admission to the bar.

On appeal, the BEC challenges the propriety of the trial court’s rejection of its decision, claiming that questions of good moral character in the attorney admission process are properly delegated to the discretion of the BEC. The petitioner claims that: (1) the BEC lacks standing to bring this appeal; (2) even if this appeal is properly before this court, the trial court acted within its discretion; and (3) as an alternate ground for affirming the judgment of the trial court, the BEC deprived the petitioner of his due process rights to notice, to an adequate opportunity to rebut evidence and to present evidence and testimony.

I

“Fixing the qualifications for, as well as admitting persons to, the practice of law in this state has ever been an exercise of judicial power.” Heiberger v. Clark, 148 Conn. 177, 185, 169 A.2d 652 (1961); State Bar Assn. v. Connecticut Bank & Trust Co., 145 Conn. 222, 232, 140 A.2d 863 (1958); O’Brien’s Petition, 79 Conn. 46, 55, 63 A. 777 (1906), overruled on other grounds, In re Application of Dinan, 157 Conn. 67, 72, 244 A.2d 608 (1968). “This power has been exercised with the assistance of committees of the bar appointed and acting under rules of court.” In re Application of Warren, 149 Conn. 266, 272, 178 A.2d 528 (1962); Heiberger v. Clark, supra, 183. In addition to establishing the BEC, the rules of practice provide for a standing committee on recommendations for admission in each county. Practice Book §§ 11,19. “Although these committees have a broad power of discretion, they act under the court’s supervision. In re Application of Dodd, 132 Conn. 237, 244, 43 A.2d 224 [1945]; see Grievance Committee v. Broder, 112 Conn. 263, 265, 152 A. 292 [1930]. It is the court, and not the bar, or a committee, which takes the final and decisive action. Heiberger v. Clark, supra, 183, and cases cited therein.” In re Application of Warren, supra.

The petitioner properly presented a petition to the Superior Court for review of the BEC’s negative recommendation. Heiberger v. Clark, supra, 182. The Superior Court, however, has only limited discretion to accept or reject the BEC’s recommendation on admission. The hearing on the petition is not de novo. Rather, the Superior Court must review the BEC’s decision on its record to determine whether it has conducted a fair and impartial investigation. In re Application of Warren, supra, 273-74. “It has been the established practice for the court to decline to hear evidence on questions entrusted to bar committees. O’Brien’s Petition, [supra, 55]; In re Application of Warren, supra, 273. This practice applies in cases such as the present one where the issue involves an exercise of the committee’s discretion. In re Application of Warren, supra. . . . [T]he court will determine whether the committee acted fairly and reasonably or from prejudice and ill will in its consideration of the application.” In re Application of Koenig, 152 Conn. 125, 133, 204 A.2d 33 (1964). “[T]he issue before the court is whether the committee or the bar, in withholding its approval for admission, acted arbitrarily or unreasonably or in abuse of its discretion or without a fair investigation of the facts.” In re Application of Warren, supra.

A

We first address the petitioner’s claim that the BEC lacks standing to bring this appeal. He contends that, “[b]eing an arm of the trial court, the Appellant Committee cannot suffer any injury because it cannot be argued that the trial court has injured itself.” We disagree. In Grievance Committee v. Broder, supra, which involved a grievance committee appeal from a decision of the trial court, we stated: “If the disbarred attorney should have the opportunity to have reviewed by the highest tribunal of the State an alleged unreasonable exercise of discretion by the trial court, or some irregularity or unfairness in the conduct of the proceedings, equally should it be the right of the court and the public and the due of the proper administration of justice that an exercise of discretion, claimed to be unreasonable to the court and the public and the administration of justice, should be reviewed. The granting of an appeal to the disbarred attorney and the denial of a like appeal to the representative of the public interest would be an unheard of procedure in this jurisdiction. The Supreme Court ... is the court of last resort for the correction of errors of law and it is only by an appeal to it that such errors may be finally determined. ... To deny an appeal to the representative of the public interests involved would leave the decision to the uncontrolled discretion of a single judge and prevent a review of the procedure followed by him no matter how irregular, unfair or arbitrary to the public interest concerned.” Id., 267-68. The rationale for allowing the grievance committee to appeal a judgment of the trial court applies with equal force to an appeal by the BEC.

B

Before discussing the propriety of the trial court’s actions in rejecting the BEC’s recommendation and in ordering the petitioner’s admission to the bar, we must consider what weight, if any, the BEC was required to give the standing committee’s recommendation to admit the petitioner. The rules of court provide that all applications for admission to the bar “shall be referred to the committee for the county in which the applicant seeks admission, which shall investigate the general fitness of each applicant and report to the bar of the county whether the applicant has complied with the rules relating to admission to the bar, is a person of good character and should be admitted.” Practice Book § 19. It is the BEC, however, that has the ultimate “duty, power and authority ... to determine whether such candidates are qualified as to ... morals and fitness; and to recommend to the court for admission to the bar qualified candidates.” Practice Book § 13. In this case, although the standing committee recommended admission to the bar, the BEC recommended to the court that the petitioner’s application be denied. The trial court stated that the BEC should have given “[s]ome weight ... to the Fairfield County Standing Committee’s recommendation that he had good moral character and should be admitted.” We disagree.

The BEC’s hearing on an application for admission to the bar may be conducted de novo without any consideration of the standing committee’s findings. This is especially appropriate, when, as in a case such as this, the BEC hears testimony of a witness whose credibility and candor are at issue. Accord Character Committee v. Mandras, 233 Md. 285, 288, 196 A.2d 630 (1964). Having concluded that the BEC’s hearing was properly conducted de novo, we hold that the trial court should have considered only the BEC’s findings and recommendation, and not the findings and recommen-. dation of the standing committee.

C

“A State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualifications must have a rational connection with the applicant’s fitness to practice law.” Schware v. Board of Bar Examiners, 353 U.S. 232, 239, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957). To be admitted to the bar of this state, an applicant must possess certain educational qualifications and must demonstrate his proficiency in the law by successfully completing the bar examination. Practice Book § 16 (4) and (6). Of equal importance, “[g]ood moral character is a necessary and proper qualification for admission to the bar. Fairfield County Bar v. Tay lor, 60 Conn. 11, 17, 22 A. 441 [1891]; Grievance Committee v. Broder, 112 Conn. 263, 277, 152 A. 292 [1931]; note, 64 A.L.R.2d 301[; Practice Book § 16 (3)]. In this state, the ultimate burden of proving good character rests upon the applicant. In re Application of Warren, [supra, 274].” In re Application of Koenig, supra, 132. One court has noted that, “[w]hile there is no litmus test by which to determine whether an applicant for admission to the Bar possesses good moral character . . . no moral character qualification for Bar membership is more important than truthfulness and candor.” In re Application of Allan S., 282 Md. 683, 689, 387 A.2d 271 (1978). “ ‘It is not enough for an attorney that he be honest. He must be that, and more. He must be believed to be honest. . . O’Brien’s Petition, supra, 53, quoting Fairfield County Bar v. Taylor, supra, 17.

In the present case, the trial court rejected the negative recommendation of the BEC and concluded that “the lack of credibility and candor have not been borne out by the transcript of the hearing and it therefore follows that an abuse of discretion occurred.” Although courts in other jurisdictions undertake an independent evaluation of an applicant’s present moral character; see In re Application of Allan S., supra, 690-91; Application of Strait, 120 N. J. 477, 479, 577 A.2d 149 (1990); in this state the court merely reviews the record to ascertain whether the BEC’s findings are supported by adequate facts. Although the BEC is not an administrative agency; cf. Sobocinski v. Statewide Grievance Committee, 215 Conn. 517, 526, 576 A.2d 532 (1990) (statewide grievance committee is not an administrative agency); but see In re Willis, 288 N.C. 1, 16, 215 S.E.2d 771, appeal dismissed, 423 U.S. 976, 96 S. Ct. 389, 46 L. Ed. 2d 300 (1975) (board of law examiners is an administrative agency); the Superior Court’s review of its conclusions is similar to the review afforded to an administrative agency decision. As such,

the Superior Court’s role in reviewing a petition for admission is not that of factfinder. We have repeatedly stated that “[t]he trier of the facts determines with finality the credibility of witnesses and the weight to be accorded their testimony.” (Internal quotation marks omitted.) State v. Crump, 201 Conn. 489, 491, 518 A.2d 378 (1986). Even in those jurisdictions in which courts undertake independent evaluations, there is often a presumption that a bar examining committee’s findings of fact are correct or at least entitled to weight “where based upon the testimony of witnesses whose credibility may be in issue.” See In re Application of Allan S., supra, 691.

Our judicial review is limited, therefore, to determining whether the statements of the two executive committee members concerning candor and credibility, and consequently their ultimate determination of present fitness to practice law, find support in the record of the application proceedings. We reject the contention of the petitioner that we should focus instead on whether the trial court committed a manifest abuse of discretion resulting in an injustice. The standard of review in cases involving admission or readmission to the bar has been clear since it was announced by this court in 1906 in O’Brien’s Petition, supra, 55-56 (court merely inquires “whether the approval of the bar was withheld after a fair investigation of the facts”). See also In re Application of Dinan, supra, 71 (readmission); In re Application of Koenig, supra, 133-34 (readmission); In re Application of Warren, supra, 273 (admission); Rosenthal v. State Bar Examining Committee, 116 Conn. 409, 417, 165 A. 211 (1933) (admission). Because the trial court exercises no discretion, but rather is confined to a review of the record before the BEC, we are not limited to the deferential standard of “manifest abuse” or “injustice” when reviewing its legal conclusions about the adequacy of the evidence before the BEC. See Canaan National Bank v. Peters, 217 Conn. 330, 335, 586 A.2d 562 (1991); Connecticut National Bank & Trust Co. v. Chadwick, 217 Conn. 260, 266-67, 585 A.2d 1189 (1991).

In this case, although the executive committee members did not articulate the precise facts underlying their ultimate conclusions, their failure to do so is not reversible error. “The committee should ordinarily find only the ultimate facts. If the committee has reason to believe that its conclusions from subordinate facts will be questioned, it may also state the subordinate facts. The ultimate facts are reviewable by the court to determine whether they are reasonable and proper in view of the subordinate facts found and the applicable principles of law. Cohn v. Hartford, 130 Conn. 699, 706, 37 A.2d 237 [1944] . . . .” (Citation omitted; emphasis added.) In re Application of Koenig, supra, 132-33 (reviewing an application for readmission to the bar).

While the trial court dismissed the two executive committee members’ concerns about the petitioner’s apparent lack of credibility and candor at the February 19,1988 hearing, the transcript reveals support for their concerns. Apart from the prior criminal record standing alone as a possible basis for a finding of lack of present fitness, the petitioner’s explanations of his prior criminal record adequately support the BEC’s findings. The executive committee members might have found not believable the petitioner’s offhand explanation for why he had Fiorinal, a controlled substance, in his possession on two of the occasions when he was also arrested for marihuana possession. The only explanation offered by the petitioner was that his mother or his girlfriend’s mother had given him the drug for a “neck problem.” The same explanation was offered for his possession of the drug on two occasions over a period of two and one-half years. The members might have determined that the petitioner did not take their questioning seriously when, in response to further questions regarding the Fiorinal possession, the petitioner stated that Fiorinal was “just a muscle relaxer” and it “just—happened to be in my possession at the time.” Similarly, the executive committee members might have doubted the petitioner’s candor when discussing the circumstances surrounding his arrest for interfering with a police officer. When questioned about that charge, the petitioner responded that he had been in a car with others and that all he did was walk away from police who had stopped the car because he “knew there was mari[h]uana in the car and if [he] was found in the car, that [he] would be facing a felony charge with a jail term and [he] wasn’t about to sit around for that.” Moreover, the committee members might have inferred a lack of sincerity in the petitioner’s overall explanation when pressed on the subject of why he had been arrested so often for possessory offenses. In response to a question on this subject, the petitioner stated, “I guess I just have bad luck, it’s the only explanation. It was stupid, foolish and also I didn’t have very good luck. I don’t know what else to say. It’s almost like a phenomenon.”

It was improper for the trial court in this case to substitute its own assessment of the petitioner’s credibility and candor for that of the BEC. Unlike the members of the executive committee, the trial court did not have the benefit of viewing the petitioner’s demeanor when he testified at the hearing before the BEC. In drawing its own conclusions as to these factors, the trial court stripped the BEC of authority to determine qualities such as candor and credibility when assessing the moral fitness of an applicant for membership in the state bar. The Superior Court rules specifically delegate to the BEC “the duty, power and authority to . . . determine whether such candidates are qualified as to prelaw education, legal education, morals and fitness . . . .” (Emphasis added.) Practice Book § 13. “[Satisfaction of the requirement of moral character involves an exercise of delicate judgment on the part of those who reach a conclusion, having heard and seen the applicant for admission, a judgment of which it may be said as it was of ‘many honest and sensible judgments’ in a different context that it expresses ‘an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions; impressions which may lie beneath consciousness without losing their worth.’ ” Schware v. Board of Bar Examiners, 353 U.S. 232, 248, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957) (Frankfurter, J., concurring). Because there was evidence in the record that supported the BEC’s findings about the petitioner’s lack of credibility and candor, and, consequently, his moral character and fitness to practice law, we conclude that the trial court should not have disturbed those findings.

II

The petitioner contends, as an alternate ground for affirming the trial court’s judgment, that the BEC violated his constitutional right to procedural due process when it questioned him at the February 19,1988, hearing about matters of which he had no notice and when it prohibited him from presenting general character witnesses on his behalf. We disagree.

“In cases in which admission to the bar is to be denied on the basis of character . . . the applicant, at some stage of the proceedings prior to the denial, must be adequately informed of the nature of the evidence against him and be accorded an adequate opportunity to rebut this evidence.” In re Application of Dinan, 157 Conn. 67, 72, 244 A.2d 608 (1968). “[T]he applicant should be given a reasonable opportunity to rebut or explain any adverse evidence.” In re Application of Warren, supra, 274; see Konigsberg v. State Bar of California, 353 U.S. 252, 77 S. Ct. 722, 1 L. Ed. 2d 810 (1956).

Although not represented by counsel, the petitioner, a law school graduate, did not object to the notice he had been given nor to the fact that he was prohibited from presenting general character witnesses at the time of the first hearing. Moreover, on November 17, 1989, the BEC conducted a second hearing at which the petitioner and his counsel were present. See footnote 5, supra. At that time, the chairman of the executive committee informed the petitioner’s counsel that he was “free to present anything that [he] considers] relevant, whether it involves his criminal record or it involves anything, any other matter, which [he] considers] essential to the presentation of Mr. Scott’s case before the committee.” Moreover, the chairman stated that the committee was “giving the widest possible latitude.” The petitioner did not offer any additional evidence at that time, nor did he ask for a continuance in order to prepare for a full hearing. He merely stated that he was “not waiving” any of his rights concerning the pending appeal. Before the trial court, the petitioner stated that “under no circumstances would [he] have agreed to a continuance [on the petition] and for another hearing at that time . . . .”

We are persuaded that the BEC corrected any possible due process violations as to notice and to the prohibition on general character witnesses by giving the petitioner an opportunity to present evidence involving “his criminal record or . . . any other matter, which [he] consider[s] essential to the presentation” of his case. Had the Superior Court considered the petitioner’s allegations of procedural due process violations with respect to the first hearing, and had it concluded that the BEC had deprived the petitioner of his constitutional right of due process, the only appropriate remedy would have been to recommit the case to the BEC for further proceedings consistent with the petitioner’s right to procedural due process. In re Application of Warren, supra, 275. Accordingly, the most the petitioner could have achieved from his petition to the Superior Court, with respect to the procedural due process claims, was a second hearing. Because the BEC afforded the petitioner an opportunity to present additional evidence, we conclude that his right to procedural due process was not violated.

Ill

Because the Superior Court has the ultimate power to grant or deny an applicant admission to the bar; General Statutes § 51-80; our holding today merely reverses the trial court’s judgment ordering the petitioner admitted to the bar. It does not constitute a denial of the petitioner’s application. Should the record remain in its present state, our holding today would require that the Superior Court follow the BEC’s recommendation to deny the petitioner’s application for admission to the bar. While concluding that the trial court acted improperly in rejecting the BEC’s findings, we recognize that the appropriate inquiry when deciding whether to grant admission to the bar is whether the applicant has present fitness to practice law. See In re Application of Pagano, 207 Conn. 336, 345, 541 A.2d 104 (1988); accord In re Manville, 494 A.2d 1289, 1295 (D.C. App. 1985); In re Application of Allan S., supra, 690; In re Haukebo, 352 N.W.2d 752, 754 (Minn. 1984); Application of Jenkins, 94 N. J. 458, 471, 467 A.2d 1084 (1983); In re Application of Davis, 38 Ohio St. 2d 273, 276, 313 N.E.2d 363 (1974). Fitness to practice law does not remain fixed in time. While the BEC found the petitioner unfit to practice law in 1989, it might not reach that conclusion today. Thus, the trial court should remand the petitioner’s application to the BEC for a new hearing to review any additional relevant evidence submitted by the petitioner concerning his present fitness to practice law.

The judgment is reversed, and the case is remanded to the trial court with direction to remand the case to the bar examining committee for a new hearing.

In this opinion the other justices concurred.

       Specifically, the petitioner claimed that the ultimate recommendation of the BEC was not based on the subordinate facts found; that the BEC lacked adequate guidelines or standards for its determination as to whether the petitioner was of good moral character; that it rendered the findings of the standing committee a nullity by conducting a de novo hearing; that the BEC acted as an appellate-type committee without any statutory guidelines or regulations to guide it in such an appellate capacity; and that the BEC deprived him of his constitutional rights by prohibiting him from presenting general character witnesses at the hearing.

       In 1981, the petitioner was arrested and charged with possession of controlled drugs and possession of marihuana. The possession of controlled drugs charge was nolled and the petitioner paid an $85 fine for possession of marihuana. He was convicted of possession of marihuana for a second time in 1983 and paid a $385 fine. The petitioner’s last drug related conviction occurred in 1984, when he was arrested and charged with interfering with a police officer and possession of a controlled substance. The interference charge was nolled, and he paid a $250 fine for possession of a controlled substance. The petitioner has also been cited for failing to register a change of address with the motor vehicles department, failure to carry his registration, illegal dumping, failure to carry an insurance card, making an improper left turn and failure to have insurance. Furthermore, at the age of seventeen, he was adjudicated as a youthful offender on a charge of criminal attempt to commit burglary.

       Although five members of the executive committee participated in the factfinding hearing, the minutes reflect that only three voted on the petitioner’s application at the subsequent executive session.

       Although the petitioner’s counsel offered the testimony of the petitioner “to explain to the court that area of mix-up on the criminal proceedings” and to give the court “some kind of an idea as to what kind of a person he is,” the court declined to hear the testimony, noting that it was “required to judge this on the basis of what was submitted to the Bar Examining Committee.” The court did, however, hear arguments from counsel on both sides.

       Just prior to the hearing on the petition filed in the Superior Court, the attorneys for the BEC and the petitioner agreed to have it postponed pending another hearing on the petitioner’s application by the executive committee on November 17, 1989. Following that hearing, the executive committee voted three to two to stand by its original negative recommendation. As the BEC provided no reason for its decision to abide by the original recommendation, the trial court declined to review the second hearing.

       The members of the executive committee had before them the transcript of the standing committee’s hearing prior to voting on the petitioner’s application.

       We decline to consider the propriety of the statement of the third voting executive committee member to the effect that the petitioner’s three prior criminal convictions involving illegal substance abuse justified a finding of lack of fitness to practice law. Although this court has never specifically held that an applicant’s criminal record may provide a per se justification for refusing him admission to the bar, we have allowed great weight to be placed on a prior conviction. In O’Brien’s Petition, 79 Conn. 46, 56-57, 63 A. 777 (1906), overruled on other grounds, In re Application of Dinan, 157 Conn. 67, 244 A.2d 608 (1960), this court stated that “[i]f it be assumed that, during the time that has elapsed since [the applicant escaped from custody while under arrest and then telephoned and offered to return if his bond would be lowered], the petitioner’s course of life has been altogether exemplary, this could not wholly efface the stain upon his character. Standing alone, [the wrongful acts] are sufficient to support the action of the bar in refusing to rank him among those whom they, acting under their oath of office, could recommend to the representatives of the State as ‘entitled to the confidence of the community.’ ” The constitutionality of denying admission to the bar solely on the basis of any past criminal act was placed into doubt by the United States Supreme Court’s opinion in Schware v. Board of Bar Examiners, 353 U.S. 232, 243, 246-47, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957). In that case, the court stated that the nature of an offense must be taken into account in determining whether the commission of an offense is rationally connected to a person’s moral character. But see In re Willis, 288 N.C. 1, 17, 215 S.E.2d 771, appeal dismissed, 423 U.S. 976, 96 S. Ct. 389, 46 L. Ed. 2d 300 (1975) (court unable to con-elude that evidence of prior criminal record, including a burglary arrest and convictions for trespass, driving while intoxicated, and driving in violation of a limited driving permit, did not justify the board of law examiners’ conclusion that the applicant did not possess good moral character). We need not resolve this issue in this case.

       To the extent that In re Application of Pagano, 207 Conn. 336, 344, 541 A.2d 104 (1988), in dictum, states that we engage in a limited review of a trial court’s judgment in a readmission case, it is incorrect. The cases cited therein for this proposition involve actions for disbarment and suspension of practicing attorneys. The trial court has always maintained a large degree of discretion in such cases, thus necessitating a limited scope of review by this court. See Grievance Committee v. Broder, 112 Conn. 263, 266, 152 A. 292 (1930) (review of disbarment proceedings); Grievance Committee v. Ennis, 84 Conn. 594, 602, 80 A. 767 (1911) (review of suspension proceedings); In re Durant, 80 Conn. 140, 149, 67 A. 497 (1907) (review of disbarment proceedings). In Pagano, we were reviewing the trial court’s decision to accept the recommendation of the standing committee to readmit a disbarred attorney. We properly reviewed the record before the standing committee and concluded that it disclosed “an abundance of credible evidence . . . to support its conclusion of the petitioner’s current fitness to practice law.” In re Application of Pagano, supra, 345.

       In concluding that the BEC’s findings of fact were adequately supported in the record, we do not reach the more elusive issue of what factors should be considered in determining whether an applicant to the bar possesses moral character and fitness to practice law. See generally D. Rhode, “Moral Character as a Professional Credential,” 94 Yale L. J. 491 (1985). This issue was neither raised on appeal nor briefed by the parties.

       Notwithstanding the petitioner’s claim that he was prohibited from presenting evidence of his general character, the BEC apparently had before it letters that had been submitted to the standing committee by a Superior Court judge, the petitioner’s brother, who is an attorney, and an assistant clerk at the Milford Superior Court, all attesting favorably to the petitioner’s character.

       Apparently there was some misunderstanding about the precise scope of the second hearing. The petitioner’s counsel explained to the trial court that it was his understanding that the second hearing was “for the purpose of explaining to the Committee that narrow issue of whether or not he had a problem with drugs.”

       In this respect, fitness to practice law may be analogized to parental fitness. Although affirming the conclusion of a trial court that the statutory grounds for termination of a parent’s parental rights had been proved, this court remanded a case for further proceedings for consideration of whether “any substantial change in circumstances . . . has occurred during the pendency of the appeal indicating that the ground for termination which we rely upon no longer exists.” In re Juvenile Appeal (83-BC), 189 Conn. 66, 80, 454 A.2d 1262 (1983); cf. In re Juvenile Appeal (Anonymous), 177 Conn. 648, 676, 420 A.2d 875 (1979).

       In oral argument in this court, counsel for the BEC agreed that, under the circumstances of this case, a remand for a new hearing concerning the petitioner's rehabilitation would be appropriate.


source: Caselaw Access Project

license: Public Domain

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      Philip M. French, in opposition.
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   The plaintiff’s petition for certification for appeal from the Appellate Court is denied.


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      Vincent F. Sabatini, in support of the petition.
    Decided July 9, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 839, is denied.


text:
    Town of Groton v. Peter R. Johl

      Peter R. Johl, pro se, in support of the petition.
    Decided July 17, 1991
   The plaintiff’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 469, is dismissed.


text:
    Susan Graham v. William L. Graham

      Allen Gary Palmer, in support of the petition.
    Decided July 17, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 41, is denied.


text:
    American Home Developers, Inc. v. Ivan Sachs

      Todd R. Bainer, in support of the petition.

      Thomas E. Eaton, in opposition.
    Decided July 17, 1991
   The plaintiffs petition for certification for appeal from the Appellate Court is denied.


text:
    Baystate Moving Systems, Inc. v. Peter C. Bowman et al.

      William F. Gallagher, in support of the petition.

      Lorinda S. Coon, in opposition.
    Decided July 23, 1991
   The plaintiffs petition for certification for appeal from the Appellate Court, 24 Conn. App. 531, is denied.


text:
    Rhode Island Hospital Trust National Bank v. Martin Trust

      Chester J. Bukowski, in support of the petition.

      Ann M. Siezewicz, in opposition.
    Decided July 23, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 28, is granted, limited to the following issue:

“Does the order of the trial court that the defendant bring into Connecticut certain securities and turn them over to a certain Connecticut deputy sheriff in order to effectuate an attachment simultaneously ordered by the court constitute a prejudgment remedy as defined by Connecticut General Statutes § 52-278a (d) and, therefore, an appealable order pursuant to Connecticut General Statutes § 52-278Í?”


text:
    State of Connecticut v. Edward Gilchrist

      Suzanne Zitser, in support of the petition.

      Frederick W. Fawcett, assistant state’s attorney, in opposition.
    Decided July 23, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 104, is denied.


text:
    Edna Masarjian v. Albert Masarjian

      Raymond T. Connor, in support of the petition.

      Lynne D. Jackson, in opposition.
    Decided July 23, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 803, is denied.


text:
    State of Connecticut v. Lillian A. Loughlin

      Vincent P. McCarthy, in support of the petition.

      Carolyn K. Longstreth, assistant state’s attorney, in opposition.
    Decided July 23, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 806, is denied.


text:
    Ditchkus Real Estate Company v. Dirck A. Storm

      Cynthia C. Bott, in support of the petition.

      Thomas B. Lynch, in opposition.
    Decided July 25, 1991
   The plaintiff’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 51, is denied.


text:
    State of Connecticut v. Allen Bowens

      Neal Cone, assistant public defender, in support of the petition.

      Richard F. Jacobson, assistant state’s attorney, in opposition.
    Decided July 25, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 642, is denied.


text:
    Ernest Caron et al. v. Inland Wetlands and Watercourses Commission of the Town of Berlin et al.

      Charles W. Bauer, in support of the petition.

      E. Timothy Sullivan, corporation counsel, in opposition.
    Decided July 25, 1991
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 25 Conn. App. 61, is granted, limited to the following issue:

“In the circumstances of this case, have the plaintiffs established their entitlement to automatic approval of their application for a wetlands permit because of the named defendant’s failure to act within the time period specified by the relevant statute and regulation?”


text:
    State of Connecticut v. Jasper McFadden

      Jeremiah Donovan, in support of the petition.

      SusannE. Gill, assistant state’s attorney, in opposition.
    Decided July 25, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 171, is denied.


text:
    State of Connecticut v. Robert L. Willis

      Joseph G. Bruckmann, assistant public defender, in support of the petition.

      Richard F. Jacobson, assistant state’s attorney, in opposition.
    Decided September 19, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 678, is granted, limited to the following issues:

“1. Did the Appellate Court correctly conclude that the trial court properly admitted the state’s evidence regarding the physical effects of crack cocaine?

“2. If the answer to the first question is no, did the trial court properly deny the defendant’s motion for a mistrial?

“3. If the answer to the first question is no, did the trial court properly deny the defendant’s motion to strike the testimony regarding the physical effects of crack cocaine?”


text:
    Anthony Lozada v. Warden, State Prison

      James M. Ralls, assistant state’s attorney, in support of the petition.
    Decided September 19, 1991
   The respondent’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 723, is granted, limited to the following issue:

“Was the Appellate Court correct in concluding that the petitioner was entitled to seek a writ of habeas corpus on the ground that his attorney in his prior habeas corpus proceeding rendered ineffective assistance of counsel?”


text:
    Edward Morin v. Bell Court Condominium Association, Inc.

      John A. Blazi and Robert S. Cullen, for intervening plaintiff Travelers Insurance Company, in support of the petition.

      Ralph G. Eddy, in opposition.
    Decided September 19, 1991
   The plaintiff’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 112, is granted, limited to the following issue:

“Did the Appellate Court correctly conclude that the plaintiff had introduced insufficient evidence at trial for the jury to find that the defendant had constructive notice of the plaintiffs presence at the time and place of the accident?”


text:
    State of Connecticut v. John C. Grant

      Elizabeth A. Gallagher, in support of the petition.

      Mary H. Lesser, assistant state’s attorney, in opposition.
    Decided September 19, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 154, is denied.


text:
    Martin H. Factor v. Fallbrook, Inc., et al.

      Ahmed A. Dadi, pro se, in support of the petition.
    Decided September 19, 1991
   The defendant Ahmed A. Dadi’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 159, is denied.


text:
    Yankee Gas Services Company v. Joseph DaSilva, Jr., et al. Connecticut Light and Power Company v. Joseph DaSilva, Jr., et al. Yankee Gas Services Company v. Joseph DaSilva, Jr.

      Steven M. Olivo, in support of the petition.

      Patrick J. O’Connell, in opposition.
    Decided September 19, 1991
   The defendants’ petition for certification for appeal from the Appellate Court, 25 Conn. App. 226, is denied.


text:
    Charles Tyson v. Warden, State Prison

      Louis S. Avitabile, special public defender, in support of the petition.

      Jacqueline J. Footman, deputy assistant state’s attorney, in opposition.
    Decided September 19, 1991
   The petitioner’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 729, is denied.


text:
    State of Connecticut v. Jeffrey A. Walker

      Kent Drager, assistant public defender, in support of the petition.

      Carolyn K. Longstreth, assistant state’s attorney, in opposition.
    Decided September 19, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 737, is denied.


text:
    State of Connecticut v. Andrew L. Owens

      James W. Bergenn, in support of the petition.

      James M. Ralls, assistant state’s attorney, in opposition.
    Decided September 19, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 181, is denied.


text:
    Laura D. Klingeman, Administratrix (Estate of Todd Klingeman) v. William MacKay et al.

      Thomas J. Weihing, in support of the petition.

      Thomas G. Parisot and Paul E. Pollock, in opposition.
    Decided September 19, 1991
   The plaintiff’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 217, is denied.


text:
    Sophie Protter v. Brown Thompson and Company et al.

      David J. Scully, in support of the petition.

      Paul Ruszczyk, in opposition.
    Decided September 19, 1991
   The fourth party plaintiff-appellant Clarence Butler’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 360, is granted, limited to the following issue:

“When does the statute of limitations commence to run for an indemnity action? What statute of limitations, if any, governs indemnity actions?”


text:
    Donna Simms v. Robert Simms

      Daniel W. Moger, Jr., in support of the petition.

      Michael A. Meyers, in opposition.
    Decided September 19, 1991
   The plaintiffs petition for certification for appeal from the Appellate Court, 25 Conn. App. 231, is denied.


text:
    State of Connecticut v. Antone Angelo

      Mark D. Malley and Wesley W. Horton, in support of the petition.

      Susan C. Marks, assistant state’s attorney, in opposition.
    Decided September 19, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 235, is denied.


text:
    State of Connecticut v. Eugene Russell

      Elizabeth M. Inkster, assistant public defender, in support of the petition.

      Judith Rossi, assistant state’s attorney, in opposition.
    Decided September 19, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 243, is denied.


text:
    Gary A. Duve v. Gail S. Duve

      Gary A. Duve, pro se, in support of the petition.
    Decided September 19, 1991
   The plaintiff’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 262, is denied.


text:
    State of Connecticut v. Wayne Sanford

      Brian Carlow, assistant public defender, in support of the petition.

      MitchellS. Brody, assistant state’s attorney, in opposition.
    Decided September 19, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 255, is denied.


text:
    State of Connecticut v. Joanne Rochette

      Jeremiah Donovan, in support of the petition.

      Lawrence J. Tytla, assistant state’s attorney, in opposition.
    Decided September 19, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 298, is denied.


text:
    State of Connecticut v. Thurlow Carey

      Timothy J. Sugrue, assistant state’s attorney, in support of the petition.
    Decided September 19, 1991
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 421, is granted, limited to the following issues:

“1. Did the failure of the state to comply with Practice Book § 943 with respect to initiating this proceeding for revocation of the defendant’s probation deprive the trial court of subject matter jurisdiction?

“2. Did the defendant waive such noncompliance by failing to raise this procedural defect in the trial court?”


text:
    State of Connecticut v. Frederick N. Lucci, Jr.

      Richard Emanuel, assistant public defender, in support of the petition.

      C. Robert Satti, Sr., state’s attorney, in opposition.
    Decided September 19, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 334, is denied.


text:
    Suffield Bank v. William W. Berman et al.

      Carol A. Fantozzi, in support of the petition.
    Decided September 19, 1991
   The plaintiff’s cross petition for certification for appeal from the Appellate Court, 25 Conn. App. 369, is dismissed as moot.


text:
    Barberino Realty and Development Corporation v. Planning and Zoning Commission of the Town of Farmington et al.

      Palmer S. McGee, Jr., in support of the petition.

      Robert J. Reeve and William L. Wollenberg, in opposition.
    Decided September 19, 1991
   The defendants’ petition for certification for appeal from the Appellate Court, 25 Conn. App. 392, is granted, limited to the following issue:

“When a zoning regulation requires a site plan showing the specific project proposed to be submitted with an application for a special permit, after approval of such a permit and site plan, must a later revision of the site plan conform to the zoning regulations for approval of such a special permit?”


text:
    State of Connecticut v. Everton Lewis

      Neal Cone, assistant public defender, in support of the petition.

      MitchellS. Brody, assistant state’s attorney, in opposition.
    Decided September 19, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 354, is denied.


text:
    Suffield Bank v. William W. Berman et al.

      Kerry M. Wisser, in support of the petition.

      Carol A. Fantozzi, in opposition.
    Decided September 19, 1991
   The defendants William W. Berman, James J. Luzzi and Thomas E. Kohanski’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 369, is denied.


text:
    Rudra Tamm, Trustee v. J. William Burns, Commissioner of Transportation, et al.

      Kenneth N. Bedford, assistant attorney general, in support of the petition.
    Decided September 19, 1991
   The named defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 468, is granted, limited to the following issue:

“Did the Appellate Court properly conclude that the plaintiff had adequately alleged facts amounting to a substantial claim of a violation of his constitutional right against taking of his property without just compensation, so as to avoid the bar of sovereign immunity?”


text:
    State of Connecticut v. Donald Payne

      Thomas M. Conroy, special public defender, in support of the petition.

      Harry Weller, assistant state’s attorney, in opposition.
    Decided September 19, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 428, is denied.


text:
    Madrid Corporation v. Inland Wetlands Agency of the Town of Mansfield et al.

      Leonard Jacobs, in support of the petition.

      Daniel K. Lamont, in opposition.
    Decided September 19, 1991
   The plaintiff’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 446, is denied.


text:
    Bruce A. Bouley et al. v. City of Norwich et al.

      Marc S. Mandell, in support of the petition.

      Donald R. Beebe, in opposition.
    Decided September 19, 1991
   The defendants’ petition for certification for appeal from the Appellate Court, 25 Conn. App. 492, is granted, limited to the following issue:

“Is an employee who is injured in the course of his employment and who has received workers’ compensation benefits barred from receiving uninsured or underinsured benefits from his self-insured employer pursuant to General Statutes § 31-284 (a)?”


text:
    State of Connecticut v. Finley Williams

      Erskine D. McIntosh, assistant public defender, in support of the petition.

      Frederick W. Fawcett, assistant state’s attorney, in opposition.
    Decided September 19, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 456, is denied.


text:
    Charles Thompson v. Commissioner of Correction

      Michael J. Isko, in support of the petition.

      James M. Ralls, assistant state’s attorney, in opposition.
    Decided September 19, 1991
   The petitioner Charles Thompson’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 804, is denied.


text:
    L. and L. Builders, Inc. v. Debra Parmelee

      Debra M. Parmelee, pro se, in support of the petition.
    Decided September 19, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 806, is granted, limited to the following issue:

“Does the record support the trial court’s conclusion that the defendant had waived her right to a jury trial in this civil action?”


text:
    Robert W. Hill, Jr. v. Cheryl Lynn Hill

      Wesley W. Horton, in support of the petition.

      William F. Gallagher, in opposition.
    Decided September 19, 1991
   The plaintiff’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 452, is denied.


text:
    State of Connecticut v. Wilson Ortiz

      Thomas Ullman, assistant public defender, in support of the petition.

      Timothy J. Sugrue, assistant state’s attorney, in opposition.
    Decided September 19, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 801, is denied.


text:
    State of Connecticut v. Benjamin E. Rodriguez

      Mark Rademacher, in support of the petition.
    Decided September 19, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App, 802, is denied.


text:
    Bernard Fisher v. Jean Fisher

      L. Paul Sullivan, in support of the petition.

      C. Ian McLachlan, in opposition.
    Decided September 19, 1991
   The plaintiff’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 82, is denied.


text:
    Angela Giannitti v. City of Stamford

      Kenneth B. Povodator, assistant corporation counsel, in support of the petition.

      Stephen A. Finn, in opposition.
    Decided September 19, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 67, is denied.


text:
    State of Connecticut v. Christopher Taft

      G. Douglas Nash, public defender, in support of the petition.

      Steven M. Sellers and SusannE. Gill, assistant state’s attorneys, in opposition.
    Decided October 3, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 149, is denied.


text:
    State of Connecticut v. Martin Geisler

      LeonF. Dadhec, Jr., assistant state’s attorney, in support of the petition.

      Richard Emanuel, assistant public defender, in opposition.
    Decided October 3, 1991
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 282, is granted, limited to the following issue:

“Was the Appellate Court correct in reversing the trial court’s factual finding that the police reasonably believed that the defendant was in need of emergency assistance, thus rendering entry of the defendant’s home lawful under the emergency doctrine?”


text:
    State of Connecticut v. Richard Weber

      Thomas Ullmann, assistant public defender, in support of the petition.

      Steven M. Sellers, assistant state’s attorney, filed a response to the defendant’s petition.
    Decided October 3, 1991
   The defendant’s petition for certification for appeal from the Appellate Court is denied.


text:
    State of Connecticut v. Jose J. Gonzalez

      Richard F. Jacobson, assistant state’s attorney, in support of the petition.
    Decided October 3, 1991
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 433, is denied.


text:
    Alan S. Green v. Ensign-Bickford Company

      James A. Wade and Linda L. Morkan, in support of the petition.

      A. Paul Spinella, in opposition.
    Decided October 3, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 479, is denied.


text:
    Nancy W. Vickery v. Harold R. Vickery

      Allen Gary Palmer, in support of the petition.

      Wilbur Ward Dinegar, assistant attorney general, in opposition.
    Decided October 3, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 555, is denied.


text:
    State of Connecticut v. Billy Waller, Jr.

      Steven D. Brown, in support of the petition.

      Margaret Gaffney Rodionovas, deputy assistant state’s attorney, in opposition.
    Decided October 3, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 575, is granted, limited to the following issues:

“1. Whether pursuant to article first, § 7, of the Connecticut constitution, Officer Vivo’s warrantless search of the defendant’s car was unreasonable since the defendant did not have access to a weapon or the ability to destroy evidence of a crime?

“2. Whether the warrantless search of the defendant’s car could be justified under any exception to the warrant requirement found in article first, § 7, of the Connecticut constitution, especially since the defendant was restrained from reaching his vehicle, and Officer Vivo lacked any reason to justify the search?”


text:
    C.N.A. Insurance Company v. Frank Colman et al.

      Jan C. Trendowski, in support of the petition.

      Laurence V. Parnoff, in opposition.
    Decided October 3, 1991
   The plaintiff’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 651, is granted, limited to the following issue:

“Is an employee who is injured in the course of his employment and who has received workers’ compensation benefits barred from receiving uninsured or underinsured motorist benefits from his employer pursuant to Connecticut General Statutes § 31-284 (a)?


text:
    State of Connecticut v. Anthony Hopkins

      David T. Grudberg, special public defender, in support of the petition.

      Frederick W. Fawcett, assistant state’s attorney, in opposition.
    Decided October 3, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 565, is denied.


text:
    Fiske H. Ventres v. Inland Wetlands and Watercourses Commission of the Town of Burlington et al.

      Edward F. Scully, in support of the petition.

      Charles W. Bauer, in opposition.
    Decided October 3, 1991
   The plaintiff’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 572, is denied.


text:
    State of Connecticut v. Christopher Taft

      Patricia Buck Wolf, special public defender, in support of the petition.

      Marjorie Allen Dauster, deputy assistant state’s attorney, in opposition.
    Decided October 3, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 578, is denied.


text:
    Dennis Felsted et al. v. Kimberly Auto Services, Inc., et al.

      Roger Sullivan, in support of the petition.

      Richard J. Falcigno, in opposition.
    Decided October 3, 1991
   The plaintiff’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 665, is denied.


text:
    Staci Forsberg v. New Hampshire Insurance Company et al. New Hampshire Insurance Company et al. v. Staci Forsberg

      George J. DuBorg, in support of the petition.

      Daniel P. Scapellati and Elizabeth A. Gallagher, in opposition.
    Decided August 6, 1991
   The New Hampshire Insurance Company’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 655, is granted. It is further ordered that the matter be remanded to the Appellate Court for reconsideration in light of this court’s decision in Covenant Ins. Co. v. Coon, 220 Conn. 30.


text:
    State of Connecticut v. Enrique Ayala
   The defendant’s petition for certification for appeal from the Appellate Court is granted, limited to the following issues:

“1. Does the order of the Appellate Court granting review but denying relief with respect to the defendant’s motion for review of the trial court’s order revoking the defendant’s release on bond pursuant to Connecticut General Statutes § 54-64f constitute a final judgment reviewable by this court pursuant to Connecticut General Statutes § 51-197f?

Michael A. Georgetti, in support of the petition.

Susan C. Marks, assistant state’s attorney, in opposition.

Decided October 9, 1991

“2. If the order of the Appellate Court is reviewable, does Connecticut General Statutes § 54-64f as applied to the defendant violate the right of bail provision of article first, § 8, of our state constitution?”


text:
    State of Connecticut v. Katrina Woods

      Louis S. Avitabile, in support of the petition.

      Jack W. Fisher, deputy assistant state’s attorney, in opposition.
    Decided October 9, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 275, is denied.


text:
    Mary G. Stillman v. Zoning Board of Appeals of the Town of Redding et al.

      Thomas W. Beecher, in support of the petition.

      Michael N. LaVelle and Marylouise S. Black, in opposition.
    Decided October 9, 1991
   The plaintiff’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 631, is denied.


text:
    Lillian Nelson v. Stop and Shop Companies, Inc.

      Cynthia C. Bott, in support of the petition.

      Dion W. Moore, in opposition.
    Decided October 9, 1991
   The plaintiff’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 637, is denied.


text:
    State of Connecticut v. James R. Welch, Sr.

      MitchellS. Brody, assistant state’s attorney, in support of the petition.

      Richard Emanuel, assistant public defender, in opposition.
    Decided October 16, 1991
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 270, is granted, limited to the following issue:

“Following a reversal of a judgment of conviction on the ground that a count was improperly added under Practice Book § 624, should the rescript direct a judgment of acquittal on remand, as was done in State v. Jacobowitz, 182 Conn. 585, 594 (1981), or should it direct a new trial on that count?”


text:
    State of Connecticut v. George Arline
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 653, is granted, limited to the following issues:

“1. Did the Appellate Court correctly conclude that the defendant’s right to the effective assistance of counsel under the sixth amendment to the United States constitution was not abridged by the trial court’s ruling regarding the scope of the defendant’s final argument?

Thomas Ullman, assistant public defender, in support of the petition.

James M. Ralls, assistant state’s attorney, in opposition.

Decided October 9, 1991

“2. Did the Appellate Court correctly conclude that the defendant’s privilege against self-incrimination under the fifth amendment to the United States constitution was not abridged by the state’s statement in final argument: ‘What motive does George Arline have to come and deny it?’ ”


text:
    State of Connecticut v. Michael Curley

      Andrew B. Bowman, in support of the petition.

      Frederick W. Fawcett, assistant state’s attorney, in opposition.
    Decided October 16, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 318, is denied.


text:
    State of Connecticut v. Myles McCarthy

      Brian M. O’Connell, in support of the petition.

      Margaret Gaffney Radionovas, deputy assistant state’s attorney, in opposition.
    Decided October 16, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 624, is denied.


text:
    David Copeland v. Warden, State Prison

      David J. Wenc, in support of the petition.

      James M. Ralls, assistant state’s attorney, in opposition.
    Decided October 16, 1991
   The petitioner David Copeland’s petition for certification for appeal from the Appellate Court, 26 Conn. App. 10, is granted, limited to the following issue:

“After a defendant has been found not guilty by reason of mental disease or defect, does the trial court have the authority to impose a criminal sentence consecutive to the defendant’s psychiatric commitment?”


text:
    Society for Savings v. Carmine S. Stramaglia et al.

      Robert L. Fisher, Jr., in support of the petition.
    Decided October 24, 1991
   The named defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 688, is granted, limited to the following issue:

“In the circumstances of this case, was it an abuse of discretion to deny the motion to open a judgment of strict foreclosure?”


text:
    State of Connecticut v. Ruben Polanco

      Jon L. Schoenhorn, in support of the petition.

      Leon F. Dalbec, Jr., assistant state’s attorney, in opposition.
    Decided October 24, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 26 Conn. App. 33, is denied.


text:
    Henry D. Marcus v. Irene DuPerry

      Henry D. Marcus, pro se, in support of the petition.
    Decided October 24, 1991
   The plaintiffs petition for certification for appeal from the Appellate Court, 25 Conn. App. 293, is granted, limited to the following issues:

“1. Was the retainer contract between the parties unenforceable for lack of consideration?

“2. Was the retainer contract between the parties unenforceable as contrary to public policy?

“3. Was the plaintiff entitled to a quantum meruit recovery?”


text:
    In re Alexander V.

      Diane Polan, in support of the petition.

      Susan T. Pearlman and Nina F. Elgo, assistant attorneys general, in opposition.
    Decided October 24, 1991
   The respondent mother's petition for certification for appeal from the Appellate Court, 25 Conn. App. 741, is granted, limited to the following issues:

“1. Under what circumstances does the due process clause of the United States constitution require a determination of parental competency as a prerequisite to a proceeding for the termination of parental rights? Were there sufficient indicia of incompetence in this case to have required the trial court to inquire into competency, sua sponte?

“2. Was the failure of trial counsel to raise the issue of competency at trial a denial of effective legal representation that prejudiced the outcome of the termination proceedings?”


text:
    State of Connecticut v. Angel Luis Roman

      Donald Dakers, public defender, in support of the petition.

      Margaret Gaffney Rodionovas, deputy assistant state’s attorney, in opposition.
    Decided October 24, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 734, is denied.


text:
    State of Connecticut v. Jose J. Gonzalez

      Deborah L. DelPrete, deputy assistant public defender, and Richard Emanuel, assistant public defender, in support of the petition.

      Richard F. Jacobson, assistant state’s attorney, in opposition.
    Decided November 1, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 433, is granted, limited to the following issue:

“Did the Appellate Court properly conclude that the trial court properly instructed the jury on attempt liability under General Statutes § 53a-49 (a) (1)?”


text:
    State of Connecticut v. Roger B. Sherwood

      Susan M. Hankins, assistant public defender, in support of the petition.

      Richard F. Jacobson, assistant state’s attorney, in opposition.
    Decided November 1, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 725, is denied.


text:
    Town of Groton v. Peter R. Johl

      Peter R. Johl, pro se, in support of the petition.
    Decided November 1, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 24 Conn. App. 469, is denied.


text:
    Bradley B. Brooks v. Carolyn S. Brooks

      William F. Gallagher, in support of the petition.

      Laurence Sarezky, in opposition.
    Decided November 6, 1991
   The plaintiffs petition for certification for appeal from the Appellate Court is denied.


text:
    Max F. Brunswick et al. v. Inland Wetlands Commission of the Town of Bethany et al.

      Max F. Brunswick, in support of the petition.
    Decided November 6, 1991
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 25 Conn. App. 543, is granted, limited to the following issues:

“1 Did the Appellate Court properly hold that the trial court should have dismissed the appeal for want of subject matter jurisdiction because one of the ten plaintiffs was an attorney who also signed the writ?

“2. Was the Appellate Court correct in refusing to find that the withdrawal of the plaintiff-attorney from the appeal cured any defect in the appeal as to the other nine plaintiffs?

“3. Does General Statutes § 8-8 (p) authorize the plaintiffs’ attempt to cure the defect relied upon by the Appellate Court in dismissing the action?”


text:
    State of Connecticut v. John Cavanaugh

      Temmy Ann Pieszak, assistant public defender, in support of the petition.

      Rita M. Shair, assistant state’s attorney, in opposition.
    Decided November 6, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 23 Conn. App. 667, is denied.


text:
    Success Centers, Inc. v. Huntington Learning Centers, Inc., et al.

      Bruce G. MacDermid and Gregory T. DAuria, in support of the petition.

      Charles F. Steljes, in opposition.
    Decided November 13, 1991
   The plaintiff’s petition for certification for appeal from the Appellate Court is granted, limited to the following issue:

“Did the Appellate Court properly dismiss for lack of a final judgment the plaintiff’s appeal from the trial court’s order compelling arbitration?”


text:
    Paul A. Hudon v. Rosalie Benny Zanoni, Executrix (Estate of Helen A. Benny)

      Rosalie Benny Zanoni, pro se, in support of the petition.

      Alexandra Davis, in opposition.
    Decided November 13, 1991
   The defendant’s petition for certification for appeal from the Appellate Court is denied.


text:
    State of Connecticut v. Anthony Cain

      Richard Emanuel, assistant public defender, in support of the petition.

      Harry Weller, assistant state’s attorney, in opposition.
    Decided November 13, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 503, is granted, limited to the following issues:

“1. Do Practice Book §§ 748 through 755 require a municipality to preserve and produce 911 tapes?

“2. Did the Appellate Court properly establish a one year retention period for such tapes?

“3. Did the Appellate Court apply the proper harmless error standard to the destruction of the 911 tape in this case?

“4. What was the effect of the defendant’s failure promptly to seek preservation of the 911 tape in this case?”


text:
    Alan J. Koepke v. Zoning Board of Appeals of the Town of Coventry et al.
   The defendant Susan Oygard’s petition for certification for appeal from the Appellate Court, 25 Conn. App. 611, is granted, limited to the following issues:

“1. Did the Appellate Court correctly hold that the contents of the public hearing notice published by the board was so inadequate as to deprive it of jurisdiction?

“2. Should the Appellate Court, after concluding that the Coventry board of appeals lacked jurisdiction of the plaintiff’s appeal from the granting of a permit by the zoning enforcement officer because the hearing notice was defective, have ordered that the board conduct a new hearing on the plaintiffs appeal after giving proper notice thereof?”

Mark K. Branse, in support of the petition.

Duncan J. Forsyth, in opposition.

Decided November 13, 1991


text:
    Alan J. Koepke v. Zoning Board of Appeals of the Town of Coventry et al.

      Duncan J. Forsyth, in support of the petition.

      Mark K. Branse, in opposition.
    Decided November 13, 1991
   The plaintiff’s cross petition for certification for appeal from the Appellate Court, 25 Conn. App. 611, is denied.


text:
    Gloria Gagne, Administratrix (Estate of Michelle Gagne) v. National Railroad Passenger Corporation et al.

      Lester Katz, in support of the petition.

      Andrew O’Keefe, in opposition.
    Decided November 13, 1991
   The plaintiff’s petition for certification for appeal from the Appellate Court, 26 Conn. App. 74, is denied.


text:
    George Tremblay et al. v. Michael K. Patenaude

      Jean M. Stawicki, in support of the petition.
    Decided November 13, 1991
   The plaintiff’s petition for certification for appeal from the Appellate Court is denied.


text:
    Steve Griffin et al. v. Kelly Energy Systems, Inc.

      Thomas L. Kelly, in support of the petition.

      Daniel P. Beharry, in opposition.
    Decided November 22, 1991
   The defendant’s petition for certification for appeal from the Appellate Court is denied.


text:
    Seymour Hammer v. Mount Sinai Hospital et al.

      David Sheridan and John F. Scully, in support of the petition.

      Wesley W. Horton, in opposition.
    Decided November 22, 1991
   The defendants’ petition for certification for appeal from the Appellate Court, 25 Conn. App. 702, is denied.


text:
    State of Connecticut v. Andrew Headley

      BrianM. O’Connell, special public defender, in support of the petition.

      Paul J. Ferencek, assistant state’s attorney, in opposition.
    Decided November 22, 1991
   The defendant’s petition for certification for appeal from the Appellate Court, 26 Conn. App. 94, is denied.


author: Borden, J.

text:
    Nationwide Mutual Insurance Company v. Elsa Cassin
    (14343)
    Shea, Glass, Covello, Borden and Berdon, Js.
    Argued October 30, 1991
    decision released January 21, 1992

      Peter D. Clark, with whom, on the brief, was Elizabeth E. Robear, for the appellant (plaintiff).

      Carey B. Reilly, for the appellee (defendant).
   Borden, J.

The issue in this appeal is whether the defendant, Elsa Cassin, is entitled to uninsured motorist benefits under the provisions of an insurance policy issued to her by the plaintiff, Nationwide Mutual Insurance Company. The plaintiff appeals from the judgment of the trial court granting the defendant’s motion to confirm an arbitration award in the amount of $100,000 in favor of the defendant. We reverse.

The parties stipulated to the following facts. On December 10, 1983, Arnold Cassin was involved in a motor vehicle accident in the town of Greenwich while operating a 1977 Cadillac Seville in which his wife, the defendant and owner of the automobile, was a passenger. At the time of the accident, the defendant was the named insured on an insurance policy (policy) issued by the plaintiff that specifically covered the defendant’s Cadillac. The policy, entitled “Nationwide’s Century II Auto Policy,” provided, inter alia, liability and collision coverage. The policy also contained mandatory endorsement 1751, entitled “New York Automobile Accident Indemnification Endorsement,” which provided uninsured motorist coverage, in the amount of $10,000 per person and $20,000 per accident, for all accidents occurring in the state of New York. In addition, the defendant had purchased and the policy contained endorsement 1737, entitled “Supplementary Uninsured Motorist Insurance,” which provided increased uninsured motorist coverage in the amount of $100,000 per person and $300,000 per accident, underinsured motorist coverage, and coverage for all accidents occurring within the United States.

The defendant, who had sustained personal injuries as a result of the accident, filed a complaint against her husband in the Superior Court in Stamford alleging that his negligent conduct caused her injuries. The defendant’s husband, who was covered under the liability portion of the policy,* ** forwarded the complaint to the plaintiff, directing the plaintiff to pay any damages he had become legally obligated to pay to the defendant as a result of the accident. The plaintiff informed the defendant’s husband that there was no liability coverage for a claim against him by his spouse under the terms of the policy and under the provisions of New York Insurance Law § 3420 (McKinney 1985).

Thereafter, the defendant made a demand, pursuant to the policy, for arbitration with the American Arbitration Association, claiming that since the plaintiff had refused to indemnify her husband’s liability for the accident, the 1977 Cadillac Seville was an uninsured automobile and, therefore, she was entitled to uninsured motorist benefits under the policy. The three member arbitration panel concluded, by a vote of two to one, that the defendant was entitled to uninsured motorist coverage under the policy in the amount of $100,000. The arbitration panel held that paragraph 5 of endorsement 1737 provided uninsured motorist coverage to the defendant while she was occupying the insured automobile.

The plaintiff then filed an application to vacate the arbitration award in the Superior Court, and the defendant filed a motion to confirm the award. The trial court confirmed the award, stating that even though New York law does not require the insurer to provide coverage for interspousal suits in the liability portion of the policy, an individual may purchase coverage for such a suit, and that paragraph 5 of endorsement 1737 effectuated such coverage. The plaintiff appealed to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023.

The plaintiff claims that the trial court improperly interpreted the terms of the policy in concluding that the policy provided uninsured motorist coverage to the defendant in this case. We agree.

Since the insurance policy contract was made in New York and the parties agree that New York law applies; see Jenkins v. Indemnity Ins. Co., 152 Conn. 249, 253, 205 A.2d 780 (1964); we apply New York law in order to construe the insurance contract. Under New York law, it is for the court to determine the parties’ rights and obligations under an insurance policy based on the specific language of the policy. Harrigan v. Liberty Mutual Fire Ins. Co., 170 App. Div. 2d 930, 930-31, 566 N.Y.S.2d 755 (1991). In order to determine whether a contract of insurance is ambiguous, all provisions must be construed as one entire contract and must be read and interpreted in light of each other. See, e.g., VanMinos v. Merkley, 48 App. Div. 2d 281, 286, 369 N.Y.S.2d 246 (1975); see also Cross Armored Carrier Corporation v. Valentine, 49 Misc. 2d 917, 268 N.Y.S.2d 792, aff’d, 28 App. Div. 2d 1090, 283 N.Y.S.2d 1016 (1966). The court will not find an ambiguity in an insurance policy where none exists. Miccio v. National Surety Corporation, 170 App. Div. 2d 937, 938, 566 N.Y.S.2d 760 (1991).

The plaintiff contends that endorsement 1751 II (b) (2) (i) of the policy; see footnote 2, supra; specifically excludes coverage in this situation. The defendant claims that because her husband is not covered under the liability portion of the policy for the negligence claim she brought against him, she is entitled to coverage under the uninsured motorist portion of the policy on the basis of paragraph 5 of endorsement 1737. We agree with the plaintiff.

Paragraph I of endorsement 1751, the mandatory uninsured motorist portion of the policy, states that “[t]he [insurance] company will pay all sums which the insured . . . shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury . . . sustained by the insured, caused by accident and arising out of the . . . use of such uninsured automobile . . . .” See footnote 2, supra. Paragraph II (b) (2) (i) of the endorsement further states that “the term ‘uninsured automobile’ shall not include ... an automobile owned by the named insured . . . .” (Emphasis added.) See footnote 2, supra. Therefore, based on the plain language of the policy, the defendant cannot collect uninsured motorist benefits from the plaintiff because the automobile involved in this case was owned by the defendant when the accident occurred, and thus was not an “uninsured automobile” within the terms of the policy.

The defendant claims, however, that paragraph 5 of endorsement 1737 amended endorsement 1751 II (b) (2) (i) so as to provide uninsured motorist coverage in this situation. Endorsement 1737 provides that the “definition of ‘uninsured automobile’ is amended to include [an] ‘underinsured highway vehicle,’ subject to the following provisions ... 5. This endorsement does not apply to bodily injury to an insured while occupying a highway vehicle (other than one insured for this coverage by this policy) owned by a named insured . . . .” (Emphasis added.) See footnote 3, supra. The defendant contends that the language within the parentheses in paragraph 5 of endorsement 1737 amends endorsement 1751 to include within the meaning of “uninsured automobile” any automobile that was specifically insured in the declaration of the policy. Since the 1977 Cadillac Seville was the specifically insured automobile as stated in the declaration of the policy, the defendant contends that it comes within the amended definition of uninsured automobile. We disagree.

The insurance contract must be construed as one entire contract and paragraph 5 of endorsement 1737 must be interpreted in light of the other contract provisions. See, e.g., VanMinos v. Merkley, supra, 286. Endorsement 1751 provides mandatory uninsured motorist coverage to the insured. This endorsement limits coverage to $10,000 for bodily injury sustained by one person as a result of an accident and $20,000 for bodily injury sustained by two or more persons as the result of an accident. The endorsement also provides uninsured motorist coverage only for accidents occurring in New York. Endorsement 1737 was purchased by the defendant to provide increased supplementary uninsured motorist coverage to the insured,* and amended the uninsured motorist coverage provided in endorsement 1751 in three specified ways. First, the endorsement amended the definition of uninsured automobile by providing coverage for certain underinsured automobiles. Second, endorsement 1737 increased the uninsured motorist coverage to $100,000 for bodily injury sustained by one person as a result of an accident and $300,000 for bodily injury sustained by two or more persons as the result of an accident. Third, the endorsement provided coverage for accidents occurring outside New York.

The only sensible reading of paragraph 5 of endorsement 1737, however, is that it excluded the applicability of these increased supplementary benefits in situations where the insured was injured in an accident while occupying an automobile owned by her that was not specifically named in the declaration of the insurance policy as the insured vehicle. Thus, if the insured were injured in another automobile that she owned, and that automobile was not specifically listed as an insured automobile in the policy’s declaration, the increased supplementary benefits provided in endorsement 1737 would not apply and the insured would be limited to the uninsured motorist coverage set out in endorsement 1751. This provision is commonly known as an “owned-vehicle” exclusion. Annot., 30 A.L.R.4th 172. “The thrust of this exclusion is that the owner of a vehicle . . . occupying the vehicle when it is involved in an accident with an uninsured motorist can recover only under an uninsured motorist endorsement specifically covering that vehicle and may not resort to coverage for a different family vehicle.” Id., 175 n.l. Such an “owned-vehicle” exclusion has an effect similar to that of endorsement 1751II (b) (2) (i) in that it excludes uninsured motorist coverage in certain situations. Id., 175 n.3. It would be anomalous to read this language of exclusion in paragraph 5 of endorsement 1737 as creating increased uninsured motorist coverage that had previously been excluded under 1751II (b) (2) (i). It is, therefore, unlikely that the parties intended to expand uninsured motorist coverage by means of such an exclusionary clause. See, e.g., De Forte v. Allstate Ins. Co., 81 App. Div. 2d 465, 468, 442 N.Y.S.2d 307 (1981) (read insurance policy in reasonable manner to determine intent of parties).

The purpose of paragraph 5 of endorsement 1737 was not, as the defendant argues, to delete the owned car exclusion in endorsement 1751 II (b) (2) (i) from the definition of uninsured automobile. Paragraph 5 of endorsement 1737 did not change the definition of an uninsured automobile provided in endorsement 1751. The purpose of paragraph 5 was to exclude the applicability of the defendant’s increased supplementary uninsured motorist coverage in situations where the defendant sustained injuries by an uninsured automobile while occupying an automobile owned by her but not named as the insured automobile in the policy’s declaration. Thus, paragraph 5 dealt with a factual scenario that is not related to this case, and is simply irrelevant to the merits of the defendant’s claim for uninsured motorist coverage. That claim remains controlled by the terms of endorsement 1751, which specifically excluded the defendant’s automobile from the definition of an uninsured automobile, and thus excluded any claim for uninsured motorist benefits arising out of the occupancy of that automobile.

Furthermore, the defendant’s interpretation of the policy is illogical when viewed in the context of New York Insurance Law § 3420 (f) and (g) (McKinney 1985). Section 3420 (g) provides that the insurer need not provide bodily injury liability coverage for inter-spousal claims. The purpose behind this statute is to protect insurers from collusive actions between husbands and wives by permitting the insurer to refrain from providing such interspousal liability coverage. Schwartz v. S. Lipkin & Son, Inc., 76 App. Div. 2d 141, 144, 430 N.Y.S.2d 356 (1980); U.S. Fidelity & Guaranty Co. v. Franklin, 74 Misc. 2d 506, 511, 344 N.Y.S.2d 251, aff'd, 43 App. Div. 2d 844, 352 N.Y.S.2d 1009 (1973); Fuchs v. London & Lancashire Indemnity Co. of America, 258 App. Div. 603, 605, 17 N.Y.S.2d 338, appeal denied, 259 App. Div. 731, 19 N.Y.S.2d 311 (1940); see also note, Interspouse Liability Excluded From Casualty Insurance,” 8 Syracuse L. Rev. 247 (1957). This provision was enacted for the benefit of the insurer. Crilley v. Allstate Ins. Co., 38 Misc. 2d 371, 372, 238 N.Y.S.2d 125 (1963).

In this case, the plaintiff availed itself of its right under § 3420 (g) not to provide such interspousal liability coverage. Thus, the defendant’s husband’s liability claim was rightfully denied. Under the defendant’s interpretation of the policy, however, by virtue of the very absence of such interspousal liability coverage there would be automatic coverage for uninsured motorist benefits. This would render the interspousal exclusion from liability coverage meaningless. Under this interpretation, since the insurer took advantage of its statutory right to exclude from liability coverage a claim by one spouse for injuries caused by her negligent spouse, it would thereby have burdened itself with providing uninsured motorist coverage for the very same claim by the injured spouse. This interpretation is contrary to the purpose of § 3420 (g) that insurers need not insure against such interspousal claims. We decline to read this policy so as to lead to such an incongruous result.

The judgment is reversed and the case is remanded with direction to render judgment vacating the arbitration award.

In this opinion the other justices concurred.

       The defendant and her husband were residents of New York at the time of the accident. The other vehicle involved in the accident was owned by a Connecticut resident who is not involved in this appeal.

       Endorsement 1751 provided in pertinent part: “INSURING AGREEMENTS
      “I. DAMAGES FOR BODILY INJURY CAUSED BY UNINSURED AUTOMOBILES
      “The [insurance] company will pay all sums which the insured . . . shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury . . . sustained by the insured, caused by accident and arising out of the . . . use of such uninsured automobile ....
      “II. DEFINITIONS . . .
      “(b) Uninsured Automobile. The term ‘uninsured automobile’ means:
      “(1) an automobile [that does not have] . . . a bodily injury liability . . . insurance policy applicable at the time of the accident ... or [that does have] . . . a bodily injury liability . . . insurance policy applicable at the time of the accident but the [insurance] company writing the same disclaims liability or denies coverage thereunder . . . (2) . . . but the term ‘uninsured, automobile’ shall not inelude: (i) an automobile owned by the named insured or spouse ....
      “III. TERRITORY
      “This endorsement applies only to accidents which occur within the state of New York. . . .
      “CONDITIONS . . .
      “5. Limits of Liability, (a) The limit of the [insurance] company for all damages . . . because of bodily injury sustained by one person as the result of any one accident is $10,000 and . . . the total limit of liability of the company for all damages . . . because of bodily injury sustained by two or more persons ... as the result of any one accident is $20,000. . . .”
      (Emphasis added.)

       Endorsement 1737 provided in pertinent part: “This amends the insurance provided by your New York Accident Indemnification Endorsement. The first subdivision, designated (1), of the definition of ‘uninsured automobile’ is amended to include ‘underinsured highway vehicle,’ subject to the following provisions:
      “1. The dollar limits of liability [that are] . . . stated on the Declarations of the policy . . . shall apply in lieu of any limits stated in the New York Automobile Accident Indemnification Endorsement. . . .
      “5. This endorsement does not apply to bodily injury to an insured while occupying a highway vehicle (other than one insured for this coverage by this policy) owned by a named insured or any relative or through being struck by such a highway vehicle. . . .

      “It is further agreed that such insurance ... is also extended to accidents that occur outside the state of New York but within the United States of America . . . .” (Emphasis added.)
      Endorsement 1737 increased the limits of such uninsured motorist coverage from $10,000 per person and $20,000 per accident to $100,000 per person and $300,000 per accident by specifically incorporating the policy’s liability coverage limits, stated in the policy’s “Declaration,” in lieu of the lesser amounts stated in endorsement 1751.

       The policy provided liability coverage to the named insured and any “[p]ersons who live in [the named insured’s] home . . . .” Since the defendant and her husband lived in the same home, the defendant’s husband had liability coverage for any claims against him arising out of his negligent operation of the vehicle.

       The liability coverage provided that the plaintiff “will pay for damages that [the insured or her husband is] legally obligated to pay as a result of an accident arising out of the . . . use . . . of [the] auto.” See footnote 4, supra.

       New York Insurance Law § 3420 (g) (McKinney 1985) provides in pertinent part: “No policy or contract shall be deemed to insure against any liability of an insured because of death of or injuries to his or her spouse . . . unless express provision relating specifically thereto is included in the policy. . . .” Since the policy did not include a pro vision providing liability coverage for injury to a spouse, the personal injury claim brought by the defendant against her husband was not covered under the liability portion of the policy.

       The uninsured motorist portion of the policy provided that in the event of a coverage dispute, the dispute would be settled by arbitration.

       The parties agree that there is no New York case directly on point with the particular facts of this case and our research has revealed no such case.

       The plaintiff also claims that the provisions in endorsement 1737 apply only to underinsured motorist claims so that even if the defendant is correct in her contention that paragraph 5 of endorsement 1737 does provide uninsured automobile coverage to the defendant, there can be no such coverage in this case because the defendant claims uninsured motorist coverage and not underinsured coverage. Since we agree with the plaintiff’s alternative claim that paragraph 5 of endorsement 1737 does not extend uninsured motorist benefits to the defendant in this case, we assume, without deciding, that the provisions in endorsement 1737 apply to uninsured motorist claims as well as underinsured motorist claims.

       Section 3420 (f) (1) of the New York Insurance Law (McKinney 1985) mandates such coverage and provides in pertinent part: “No policy insuring against loss resulting from liability imposed by law for bodily injury . . . arising out of the ownership, maintenance and use of a motor vehicle by the insured shall be issued . . . by any authorized insurer upon any motor vehicle . . . unless it contains a provision whereby the insurer agrees that it will pay to the insured ... all sums, not exceeding a maximum amount ... of ten thousand dollars ... on account of injury to . . . one person, in any one accident, and the maximum amount ... [of twenty thousand dollars] for any one person so injured ... on account of injury to . . . more than one person in any one accident, which the insured . . . shall be entitled to recover as damages from an owner or operator of an uninsured motor vehicle . . . .”

       Endorsement 1737 tracks the language used in § 3420 (f) (2) of the New York Insurance Law (McKinney 1985), which provides in pertinent part: “Any . . . policy shall, at the option of the insured, also provide supplementary uninsured motorists insurance for bodily injury, in an amount up to the bodily injury liability insurance limits of coverage provided under such policy, subject to a maximum of one hundred thousand dollars because of bodily injury to . . . one person in any one accident and . . . up to three hundred thousand dollars because of bodily injury to . . . two or more persons in any one accident. Supplementary uninsured motorists insurance shall provide coverage, in any state ... if the limits of liability ... of another motor vehicle liable for damages are in a lesser amount than the bodily injury liability insurance limits of coverage provided by such policy. ...”

       Endorsement 1737 provided: “This amends the insurance provided by your New York Accident Indemnification Endorsement [1751].”

       Endorsement 1751 only provided uninsured motorist coverage. Endorsement 1737 provided that “the definition of ‘uninsured automobile’ is amended to include ‘underinsured highway vehicle’ . . . .” An “ ‘underinsured highway vehicle’ means a highway vehicle for which there are Bodily Injury Liability coverage ... in effect . . . [however,] [t]heir total amount... is less than the limits of coverage provided by the policy for the vehicle to which this coverage is applicable.”