author: Peters, C. J.

text:
    Joseph Szudora v. Town of Fairfield
    (13849)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.
    Argued March 1
    decision released April 17, 1990

      Donal C. Collimore, assistant town attorney, for the appellant (defendant).

      David J. Morrissey, for the appellee (plaintiff).
   Peters, C. J.

This appeal concerns the calculation of the benefits ceding that General Statutes § 7-433b (b) imposes on the compensation to which disabled members of municipal police and fire departments are entitled under General Statutes § 7-433c, the Heart and Hypertension Act. On the basis of stipulated facts, a workers’ compensation commissioner determined that the plaintiff, Joseph Szudora, was not entitled to receive benefits that cumulatively exceeded 100 percent of the base salary of other police officers employed by the defendant, the town of Fairfield. The plaintiff successfully appealed this determination to the compensation review division, which concluded that the ceiling contained in § 7-433b (b) required consideration not only of base pay but also of overtime payments to similarly situated working members of the defendant’s police department. The defendant thereafter appealed to the Appellate Court, and we transferred its appeal here pursuant to Practice Book § 4023. We find no error.

As stipulated, the plaintiff was a regular member of the police department of the defendant town, who had passed the requisite physical examination at the time of his employment. During the term of his employment, the plaintiff had substantial overtime and other earnings that exceeded his base salary. The plaintiff thereafter developed symptoms of heart disease and hypertension and, having become totally disabled, was forced to retire. A compensation commissioner awarded him benefits under § 7-433c and related medical benefits, including a special award of 195 weeks of compensation for a 25 percent permanent partial impairment of his cardiovascular system at the rate of $381 per week. In addition to his compensation award under § 7-433c, the plaintiff has been receiving benefits from the Fair-field police pension. The defendant has limited the plaintiff’s combined benefits, under § 7-433c and his pension, to 100 percent of the base salary of other town police officers, exclusive of overtime or other earnings.

The compensation review division concluded, contrary to the compensation commissioner, that the defendant has taken too narrow a view of the statutory ceiling on the plaintiff’s benefits. Although it did not adopt the plaintiff’s view that his benefits should be “capped” by his own average weekly earnings over the four year period before his retirement, the review division disagreed with the defendant’s view that the proper measure for the “cap” is the base salary of other police officers in the same position as that formerly held by the plaintiff. Section 7-433b (b) describes the benefits ceiling as “one hundred per cent of the weekly compensation” being paid to comparable officers. The review division construed “weekly compensation” as the “average earnings, including overtime” of comparable police officers, calculated on a periodic basis. Lacking the appropriate statistical data to complete such a comparison for this plaintiff, the review division remanded the case for further proceedings.

The defendant’s appeal maintains that overtime earnings are not a proper component in the calculation of “weekly compensation” for the purposes of the benefits “cap” contained in § 7-433b (b). Before we reach the merits of this claim, we must decide, as a jurisdictional matter, whether this appeal is properly here.

It is axiomatic that appellate review of disputed claims of law and fact ordinarily must await the rendering of a final judgment by the compensation review division. Matey v. Estate of Dember, 210 Conn. 626, 629-30, 556 A.2d 599 (1989); Schieffelin & Co. v. Department of Liquor Control, 202 Conn. 405, 409-12, 521 A.2d 566 (1987); Connecticut Bank & Trust Co. v. Commission on Human Rights & Opportunities, 202 Conn. 150, 156-57, 520 A.2d 186 (1987); Rapasi v. Jenkins Bros., 16 Conn. App. 121, 122-23, 546 A.2d 965, cert. denied, 209 Conn. 817, 550 A.2d 1085 (1988). The finality of the decision of the review division is called into question in this case because of the review division’s order of a remand for further administrative proceedings. The test that determines whether such a decision is a final judgment turns on the scope of the proceedings on remand: if such further proceedings are merely ministerial, the decision is an appealable final judgment, but if further proceedings will require the exercise of independent judgment or discretion and the taking of additional evidence, the appeal is premature and must be dismissed. Matey v. Estate of Dember, supra, 630.

The review division ordered a remand for the computation of “the average earnings, including overtime, of all Fairfield officers employed during the compensable period in the same position” that the plaintiff held. The proceedings contemplated on remand are therefore confined to the arithmetical task of compiling the requisite fiscal data, a task the review division characterized as “not . . . too difficult.” At oral argument, counsel for both parties agreed with the review division’s assessment that compliance with its remand order would require the defendant to undertake only a ministerial, noncontroversial compilation of salary information retrievable from an existing computer data bank. We therefore conclude that the decision of the review division was a final judgment.

Our review of the merits of the review division’s interpretation of § 7-433b (b) proceeds from well established principles. In order to ascertain and give effect to the apparent intent of the legislature, we must examine the language of the statute in light of the purpose that it was designed to achieve. Mahoney v. Lensink, 213 Conn. 548, 563, 569 A.2d 518 (1990); Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 54-55, 523 A.2d 477 (1987); Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986). The text of § 7-433b (b) provides no definition for the term “weekly compensation,” which it sets as the statutory standard of comparison for the ceiling on the Heart and Hypertension Act benefits provided by § 7-433c. We can, however, look for guidance to the proposition that all workers’ compensation legislation, because of its remedial nature, should be broadly construed in favor of disabled employees. Mingachos v. CBS, Inc., 196 Conn. 91, 97, 491 A.2d 368 (1985); Adzima v. UAC/Norden Division, 177 Conn. 107, 117, 411 A.2d 924 (1979); Kulis v. Moll, 172 Conn. 104, 109, 374 A.2d 133 (1976). This proposition applies as well to the provisions of §§ 7-433c and 7-433b (b), because the measurement of the benefits to which a § 7-433c claimant is entitled is “identical to the benefits that may be awarded to a [claimant] under chapter 568 [the Workers’ Compensation Act].” Felia v. Westport, 214 Conn. 181, 185, 571 A.2d 89 (1990).

Broadly construed, “compensation” includes more than “salary,” as other provisions of chapter 568 illustrate. We recently noted in Deschnow v. Stamford, 214 Conn. 394, 398, 572 A.2d 345 (1990), that the definition of “compensation” in § 7-433c is consonant with the definition of “income” in General Statutes § 31-275 (14), which provides that “income” means “all forms of remuneration to an individual from his employment, including wages, accident and health insurance coverage, life insurance coverage and employee welfare plan contributions.” In that case we expressly held that a claimant who, like the present plaintiff, is receiving special benefits as compensation for his permanent partial cardiovascular impairment pursuant to General Statutes §§ 7-433c and 31-308 (d), is also entitled to compensation in the form of fringe benefits under General Statutes § 31-284b. Other statutes similarly reflect the legislative understanding that “compensation” is more capacious than “salary.” See, e.g., General Statutes §§ 45-29u and 51-47b.

The legislative history of § 7-433b (b) supports the conclusion that “weekly compensation” includes all forms of weekly remuneration. As the Appellate Court recounted in Lundgren v. Stratford, 12 Conn. App. 138, 150-52, 530 A.2d 183, cert. denied, 205 Conn. 808, 532 A.2d 76 (1987), the original house bill that led to the enactment of § 7-433b (b) described the statutory ceiling as “one hundred per cent of the base salary” of a disabled municipal employee prior to his retirement. H.B. No. 8095, January Session, 1977. This bill was, however, replaced by a substitute bill establishing the present standard for comparison, i.e., “one hundred per cent of the weekly compensation” payable to a similarly situated, but not disabled, municipal employee. Substitute H.B. No. 8095, April 11,1977. Like the compensation review division, we attach significance to the legislative decision to substitute “weekly compensation” for “base salary.” In light of the remedial nature of the Heart and Hypertension Act, this court should not impose greater constraints on the benefits afforded to disabled police officers and firefighters than the legislature has chosen to adopt. See Costello v. Fairfield, 214 Conn. 189, 194, 571 A.2d 93 (1990).

In requiring the calculation of “weekly compensation” to include overtime as well as base salary, the compensation review division made no distinction between the sources from which overtime payments are derived. The defendant notes, in its brief, that its police officers “work a variety of overtime jobs, some for the [police] department, and some for outside contractors and utility companies, with the department acting as a conduit for payment. All these earnings, however, go on the officer’s W-2 form as total earnings for a year.” On this state of the record, we conclude that the decision of the compensation review division is a reasonable construction of § 7-433b (b) “that warrants respect as the considered judgment of the governmental agency vested with primary authority for enforcing our workers’ compensation statutes. See Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 599, 522 A.2d 771 (1987); New Haven v. United Illuminating Co., 168 Conn. 478, 493, 362 A.2d 785 (1975).” Felia v. Westport, supra, 188.

There is no error.

In this opinion Shea, Glass and Hull, Js., concurred.

Callahan, J., dissented.

       General Statutes § 7-433b (b) provides: “Notwithstanding the provisions of any general statute, charter or special act to the contrary affecting the noncontributory or contributory retirement systems of any municipality of the state, or any special act providing for a police or firemen benefit fund or other retirement system, the cumulative payments, not including payments for medical care, for compensation and retirement or survivors benefits under section 7-433c shall be adjusted so that the total of such cumulative payments received by such member or his dependents or survivors shall not exceed one hundred per cent of the weekly compensation being paid, during their compensable period, to members of such department in the same position which was held by such member at the time of his death or retirement. Nothing contained herein shall prevent any town, city or borough from paying money from its general fund to any such member or his dependents or survivors, provided the total of such cumulative payments shall not exceed said one hundred per cent of the weekly compensation.”
      General Statutes § 7-433c provides: “benefits for policemen or firemen DISABLED OR DEAD AS A RESULT OF HYPERTENSION OR HEART DISEASE. In recognition of the peculiar problems of uniformed members of paid fire departments, and regular members of paid police departments, and in recognition of the unusual risks attendant upon these occupations, including an unusual high degree of susceptibility to heart disease and hypertension, and in recognition that the enactment of a statute which protects such fire department and police department members against economic loss resulting from disability or death caused by hypertension or heart disease would act as an inducement in attracting and securing persons for such employment, and in recognition, that the public interest and welfare will be promoted by providing such protection for such fire department and police department members, municipal employers shall provide compensation as follows: Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems. The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability. As used in this section, the term ‘municipal employer’ shall have the same meaning and shall be defined as said term is defined in section 7-467.”

       The defendant has also briefed the issue of the meaning of the language in General Statutes § 7-433b (b) that compares the weekly compensation of a disabled police officer with that of “members of such department in the same position” as was held by the disabled officer at the time of his death or retirement. It is our understanding that neither the compensation review division nor the plaintiff takes issue with the Appellate Court’s comprehensive elucidation of this aspect of § 7-433b (b) in Lundgren v. Stratford, 12 Conn. App. 138, 145-53, 530 A.2d 183, cert. denied, 205 Conn. 808, 532 A.2d 76 (1987). Since this is the view that the defendant also espouses, we need not consider this issue further.


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    Easter House, Inc. v. Department of Children and Youth Services et al.
    (13798)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued March 7
    decision released April 17, 1990

      Katherine C. Callahan, with whom were Robert M. DeCrescenzo and, on the brief, Thomas J. Shortell, for the appellants (plaintiffs).

      Susan T. Pearlman, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, attorney general, for the appellees (defendants).
   Shea, J.

The plaintiff, Easter House, Inc., a private not-for-profit Illinois corporation licensed as an adoption agency in that state, brought this administrative appeal after the defendant, Amy B. Wheaton, the commissioner of the department of children and youth services (DCYS), acting through the attorney general, had issued a letter, on February 7,1989, ordering it to cease its activities in the placement and adoption of Connecticut children. The defendants moved to dismiss the action for lack of subject matter jurisdiction, claiming that the appeal had not been taken from a final decision of the agency in a “contested case” and that administrative remedies had not been exhausted, both as required by General Statutes § 4-183 (a). The trial court granted the motion to dismiss for lack of a decision in a “contested case” and the plaintiff has appealed from that judgment. We find no error.

There is no controversy about the subordinate facts, which may be ascertained from the complaint, from affidavits supporting and opposing the motion to dismiss filed by the parties and from testimony presented at a combined hearing on both the motion to dismiss and a motion of the plaintiff for a stay of the DCYS order. The plaintiff, a child placement agency licensed by the state of Illinois, has been arranging for out-of-state children to be adopted in Connecticut since 1979. It has no license from this state, as required by General Statutes § 17-49a for any agency seeking to “place out in any . . . adoption home . . . any child either on a temporary or permanent basis,” nor has it ever applied for such a license. The plaintiff cannot obtain a license as a child placement agency in this state because it is not a tax exempt organization, as General Statutes § 17-49b (a) requires.

The inability of the plaintiff to obtain a license pursuant to § 17-49a has not been regarded by DCYS as any reason for withholding permission for the placement of out-of-state children for adoption by Connecticut families pursuant to General Statutes § 17-51. Since 1979, DCYS has regularly granted such permission and does not object to continuation of this activity by the plaintiff. The plaintiff does not claim to have received DCYS approval for placement of a Connecticut child, except in one instance that occurred after the letter directing the plaintiff to cease this activity had been issued. After DCYS discovered that the plaintiff had been placing Connecticut children with families in both this state and other states, it issued the letter dated February 7, 1989, ordering it to cease doing so.

In dismissing the appeal for lack of subject matter jurisdiction, the trial court concluded that the complaint failed to allege that the plaintiff had been licensed as a child-placing agency in this state or that it had been approved by DCYS to place a Connecticut child for adoption, except in the instance previously mentioned. The complaint, however, does allege that the plaintiff “was approved as an out-of-state child-placing agency to conduct child-placing activities in the State of Connecticut by DCYS.” General Statutes § 4-166 (3), at the time of the appeal, defined “license” to include “the whole or any part of any agency permit, certificate, approval, registration, charter, or similar form of permission required by law . . . .” (Emphasis added.) The ambiguity as to whether these “approved” child-placing activities included the placement of Connecticut children was resolved by the testimony at the hearing on the motion to dismiss. This testimony indicated that the DCYS approvals alleged in the complaint related solely to the placement of out-of-state children in Connecticut pursuant to § 17-51.

Whether the DCYS letter directing the plaintiff to cease engaging in the placement and adoption of Connecticut children constitutes a final decision in a “contested case” depends upon whether the plaintiff had obtained a license to conduct those activities in this state that the letter has effectively revoked. Section 4-182 (c) of our Uniform Administrative Procedure Act (UAPA) provides that “[n]o revocation ... of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license.” DCYS concedes that no such notice or opportunity to be heard was given to the plaintiff prior to issuance of the letter. A “contested case,” as defined by General Statutes § 4-166 (2), is “a proceeding, including but not restricted to . . . licensing, in which the legal rights, duties or privileges of a party are required by statute to be determined by an gency after an opportunity for hearing . . . . ” If the plaintiff had a license to conduct the activities that the DCYS letter prohibited it from engaging in, therefore, § 4-182 (c) entitled the plaintiff to notice and an opportunity for a hearing prior to such a license revocation. The issuance of the letter, as the plaintiff argues, would then have been “a proceeding . . . in which the legal rights ... of a party are required by statute [§ 4-182 (c)] to be determined by an agency after an opportunity for hearing” and thus would have satisfied the definition of a “contested case” in § 4-166 (2) so that the present appeal would be authorized by § 4-183 (a).

The jurisdictional issue, therefore, turns upon whether the plaintiff in fact had a license or an equivalent approval to engage in the placement and adoption of Connecticut children. Section 17-49a of our child welfare laws provides that “[n]o person, agency ... or other organization . . . shall place out in any free, working or adoption home . . . any child either on a temporary or permanent basis without a license obtained from [DCYS]” and that “[application for such a license shall be in a form furnished by the commissioner . . . .” The plaintiff concedes that it has never held or even applied for a license as prescribed by § 17-49a. It maintains, however, that, because DCYS had approved its placement of out-of-state children in Connecticut homes for approximately ten years, these approvals constituted a license to place Connecticut children in homes in this state or in other states. The plaintiff relies upon § 4-166 of the UAPA, which defines “license” to include “the whole or part of any agency . . . approval ... or similar form of permission required by law . . . .” (Emphasis added.) It contends that there is no statutory distinction between placing out-of-state children in Connecticut homes, which it has been doing for ten years with DCYS approval, and its more recent activity of placing Connecticut children, which DCYS seeks to prohibit.

DCYS maintains, however, that there is such a distinction and that any approval that it may have granted of the plaintiffs activities in this state related exclusively to the placement of out-of-state children in Connecticut homes pursuant to § 17-51, which does not require a license for such a child placement activity. Section 17-51 requires that “[a]ny person or . . . agency . . . before bringing or sending any child into the state for the purpose of placing or caring for him in any home or institution . . . shall make application to [DCYS], giving the name, the age and a personal description of such child, the name and address of the person, home or institution with whom the child is to be placed, and such other information as may be required by said commissioner. Such person or institution shall be licensed by said commissioner under the provisions of sections 17-48 and 17-50.” (Emphasis added.) The possible ambiguity in the italicized reference to “[s]uch person or institution” in this statute is clarified by the reference to General Statutes § 17-48, which applies to the licensing of child care facilities rather than child placement agencies. DCYS has consistently construed § 17-51 not to require a license for an out-of-state agency to place a child in Connecticut but to require only that the child be placed with a child care facility licensed pursuant to § 17-48 and General Statutes § 17-50. The application that § 17-51 requires the out-of-state agency to file is for the purpose of obtaining “permission” from DCYS for the placement of a particular child. The grant of such permission does not imply approval of other child placement activities by the agency or authorize such activities in the future.

Section 17-49a, unlike § 17-51, is not restricted to the placement of out-of-state children, since it refers to the placement of “any child” and requires a child-placing agency to obtain a license before engaging in that activity. The fact that DCYS has construed § 17-51 to create an exception to the licensing requirement of § 17-49a for agencies seeking to place out-of-state children in Connecticut does not affect the application of the statute to all agencies engaged in the placement of Connecticut children. The permission DCYS has granted pursuant to § 17-51 for particular child placements sought by the plaintiff for out-of-state children, therefore, cannot reasonably be deemed approval of its activities in the placement of Connecticut children, as the plaintiff claims.

The plaintiff also argues that a provision of General Statutes § 45-61c (a) allowing a petition for termination of parental rights to be filed by “(4) a duly authorized officer of any child care agency or child-placing agency or organization . . . approved by [DCYS],” implies that “approved” in-state and out-of-state child placing agencies are on “equal footing” with respect to conducting child placement activities in Connecticut. It contends that, consequently, no distinction can be made between an agency licensed under § 17-49a and one that has been approved for placement of an out-of-state child in Connecticut pursuant to § 17-51. General Statutes § 45-61b (c), however, defines a “child-placing agency” as “any agency within or without the state of Connecticut licensed or approved by [DCYS] in accordance with sections 17-U0 a and 17-50, and in accordance with standards established by regulations of [DCYS].” (Emphasis added.) Since the plaintiff has never been licensed pursuant to §§ 17-49a and 17-50, it does not satisfy this definition of a “child-placing agency” and, therefore, its officers are not qualified to petition for termination of parental rights under § 45-61c (a) (4). We agree with the plaintiff that § 45-61b (c) in defining a “child-placing agency” makes no distinction between in-state and out-of-state agencies that have been “licensed or approved” by DCYS pursuant to § § 17-49a and 17-50, but this even handed statutory treatment is of no benefit to the plaintiff, which has not been licensed or approved in accordance with those statutes.

Finally, the plaintiff relies upon § 17-49b-47 of the Regulations of Connecticut State Agencies, which provides for the approval by DCYS of “out-of-state private child-placing agencies seeking to place children in Connecticut for the purpose of foster care or adoption” and specifies the information to be furnished in applying for such approval. DCYS concedes that the plaintiff has been approved pursuant to this regulation in relation to its activities in placing out-of-state children in Connecticut and in conjunction with granting the “permission of [the] commissioner ... for the placement of [an out-of-state] child,” as required by § 17-51. DCYS maintains that the applicability of this regulation only to “out-of-state private child-placing agencies seeking to place children in Connecticut” as well as the reference in subsection (e) of the regulation to “bringing or sending the child to Connecticut” make it clear that a grant of approval pursuant to the regulation authorizes agency activities in the placement of only out-of-state children in this state. We agree with this interpretation of the regulation. Thus, the approval the plaintiff has obtained from DCYS as an out-of-state child placement agency pursuant to this regulation cannot be expanded to include the placement of Connecticut children, for which § 17-49a plainly requires a license issued in accordance with specified procedures that the plaintiff has not followed.

We conclude that the plaintiff has never obtained DCYS approval of its activities in the placement of Connecticut children and, therefore, that § 4-182 (c), requiring notice and opportunity for a hearing before a revocation of a “license,” as defined in § 4-166 is inapplicable. Since there is no prior notice and hearing requirement absent a license, the issuance of the DCYS letter prohibiting such activities was not illegal and did not constitute a “contested case” within § 4-166. Accordingly, the plaintiffs appeal was not taken from a decision in a contested case, as required by § 4-183 (a), and the trial court lacked subject matter jurisdiction over the appeal, which was properly dismissed.

There is no error.

In this opinion the other justices concurred.

       The trial court decided that the appeal had not been taken from a final decision of the agency and did not address the claim of failure to exhaust administrative remedies. The plaintiff claims that no such administrative remedy is available because it cannot satisfy one of the statutory licensing requirements. Because we conclude that the appeal has not been taken from a decision in a “contested case” and thus should be dismissed for lack of jurisdiction, we do not consider the exhaustion issue.

       General Statutes § 4-183 (a), when this appeal was brought to the Superior Court, provided: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review by way of appeal under this chapter, provided, in case of conflict between this chapter and federal statutes or regulations relating to limitations of periods of time, procedures for filing appeals or jurisdiction or venue of any court or tribunal, such federal provisions shall prevail. A preliminary, procedural or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.”
      An amendment to this statute became effective on July 1, 1989, after the appeal had been commenced.

       The motion for a stay was denied by the trial court. The plaintiff has raised this ruling as an issue on appeal in this court, but we do not address it in view of our conclusion that jurisdiction is lacking.

       “[General Statutes] Sec. 17-49a. licensing of child-placing agencies. TEMPORARY PLACEMENT DEFINED. LIMIT ON COMMISSIONER’S ABILITY TO INSPECT. No person, agency, association, corporation, institution, society or other organization, except a parent, an adult relative as specified by section 17-82 or guardian of any child shall place out in any free, working or adoption home or board out any child either on a temporary on permanent basis without a license obtained from the commissioner of children and youth services, provided a person, agency, association, corporation, institution, society or other organization may place a child or children in a temporary home not receiving compensation from the state for a period not exceeding twenty-one days. For the purposes of this section and section 17-49b, placement on a ‘temporary basis’ means a placement of a child for a period not exceeding forty-two days. Application for such a license shall be in a form furnished by the commissioner, and shall state the location of the principal place of business of the applicant, its organization or corporate name, its purposes and the name, title and degree of professional training of each of its staff members engaged in carrying out its stated purposes. Any such applicant shall consent to such inspection, review and supervision of all acts in relation to child placing as are reasonably necessary to enable the commissioner to perform his duties under section 17-50. The provisions of this section with regard to the commissioner’s authority to inspect, review and supervise all acts in relation to child placing under section 17-50 shall be limited to inspection, review and supervision of the applicant under this section and shall not include inspection, review or supervision of the homes in which a child is placed on a temporary basis.”

       “[General Statutes] Sec. 17-49b. adoption of regulations concerning child-placing agencies, requirements; exemption, (a) The commissioner of children and youth services shall adopt regulations in accordance with chapter 54 setting forth: (1) Standards for licensing of agencies, corporations, insitutions, societies and associations and other organizations which place children on a temporary basis as defined in section 17-49a; (2) standards for the licensing of agencies, associations, corporations, institutions, societies and other organizations which place children on a permanent basis. The regulations shall require a licensee licensed on or after March 9, 1984, to have a minimum of two staff persons who are qualified by a combination of education and work experience, and be a nonprofit organization qualified as a tax-exempt organization under Section 501 (c) (3) of the Internal Revenue Code of 1954, as from time to time amended.”

       “[General Statutes] Sec. 17-51. placement of child from another state. Any person or public or private agency, corporation or organization, before bringing or sending any child into the state for the purpose of placing or caring for him in any home or institution, either free or for board, shall make application to the commissioner of children and youth services, giving the name, the age and a personal description of such child, the name and address of the person, home or institution with whom the child is to be placed, and such other information as may be required by said commissioner. Such person or institution shall be licensed by said commissioner under the provisions of sections 17-48 and 17-50. When the permission of said commissioner has been received for the placement of such child, the person, agency, corporation or organization, before placing him, shall undertake: (1) That if, prior to becoming eighteen years of age or being adopted, such child becomes a public charge, such person, agency, corporation or organization will, within thirty days after notice requesting his removal has been given by said commissioner, remove such child from the state; (2) that such person, agency, corporation or organization will report annually, and more often if requested to do so by said commissioner, as to the location and condition of the child so long as he remains in the state prior to his becoming eighteen years of age or prior to his legal adoption, and shall, at the discretion of said commissioner, execute and deliver to said commissioner a bond payable to the state, and in the penal sum of one thousand dollars, with surety or security acceptable to the attorney general, conditioned on the performance of such undertaking. The provisions of this section shall not apply in the case of (a) the bringing of a child to the home of any relative who is a resident of this state, (b) any summer camp operating ninety days or less in any consecutive twelve months or (c) any educational institution as determined by the state board of education.”

       DCYS approved the finalization of the adoption of a Connecticut child by a Connecticut family with which the child had been living following its placement by the plaintiff.

       General Statutes § 4-1S2 (c) provides: “No revocation, suspension, annulment or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license. If the agency finds that public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.”

       General Statutes § 4-166 (2), when this appeal was commenced, provided: “ ‘Contested case’ means a proceeding, including but not restricted to rate-making, price fixing and licensing, in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held, but does not include hearings referred to in section 4-168.”
      An amendment to this provision became effective on July 1, 1989.

       “[General Statutes] Sec. 17-48. licensing of child-care facilities, annual report. No orphan asylum, children’s home or similar institution, and no person or group of persons, whether incorporated for the purpose or not or any residential educational institution not exempted by the state board of education under the provisions of section 17-51 shall care for or board a child without a license obtained from the commissioner of children and youth services, except when such child has been placed with such institution, group or person by an agency holding a license from said commissioner and except for facilities providing child day care services as defined in section 19a-77. The manager or managers of each such institution and each such person or group of persons shall file with said commissioner an application for a license, in such form as he furnishes, stating the location where it is proposed to care for such child, the number of children whom it is planned to accommodate at that time and, in the case of an institution, the purpose of the institution and the names of its chief officers and of the actual superintendent in charge of the children within. The commissioner of children and youth services is authorized to fix the maximum number of children to be boarded and cared for in any such home or institution or by any such person or group of persons licensed by him. Each orphan asylum, children’s home or similar institution, and each person or group of persons, holding a license under the provisions of this section, shall file annually, with the commissioner who issued the license, a report stating the number of children received and removed during the year, the number of deaths and the causes of death, the average cost of support per capita and such other data as he may prescribe.

       “[General Statutes] Sec. 17-50. investigation, report, provisional license, revocation POWER, appeal. The commissioner of children and youth services shall investigate the conditions stated in each application made to him under the provisions of section 17-48 and the commissioner shall investigate the conditions in each application under the provisions of section 17-49a and, if the commissioner finds such conditions suitable for the proper care of children, or for the placing out of children, under such standards for the promotion of the health, safety, morality and well-being of such children as he prescribes, shall issue such license as is required as promptly as possible, without expense to the licensee. If after his investigation the commissioner finds that the applicant, notwithstanding good faith efforts, is not able to fully comply with all the requirements he prescribes, but compliance can be achieved with minimal efforts, the commmissioner may issue a provisional license for a period not to exceed sixty days. The provisional license may be renewed for additional sixty-day periods, but in no event shall the total of such periods be for longer than one year. Before issuing any license, the commissioner shall give to the selectmen of the town wherein such licensee proposes to carry on the licensed activity ten days’ notice in writing that the issuance of such license is proposed, but such notice shall not be required in case of intention to issue such license to any corporation incorporated for the purpose of caring for or placing such children. Each license so issued shall specify whether it is granted for child-caring or child-placing purposes, shall state the number of children who may be cared for, shall be in force twelve months from date of issue, and shall be renewed for the ensuing twelve months, if conditions continue to be satisfactory to the commissioner. The commissioner shall also provide such periodical inspections and review as shall safeguard the well-being, health and morality of all children cared for or placed under a license issued by him hereunder and shall visit and consult with each such child and with the licensee as often as he deems necessary but at intervals of not more [than] ninety days. Each licensee under the provisions of this section shall file annually with the commissioner a report containing such information concerning its functions, services and operation, including financial data, as the commissioner requires. Any license issued under this section may be revoked by the commissioner for cause, after notice given to the institution, person or group of persons concerned and after opportunity for a hearing thereon. Any party whose application is denied or whose license is revoked by the commissioner may appeal from such adverse decision in accordance with the provisions of section 4-183. Appeals under this section shall be privileged in respect to the order of trial assignment.”

       “[General Statutes] Sec. 45-61c. petition to terminate parental rights, (a) Any of the following persons may petition the court of probate to terminate parental rights of all persons who may have parental rights regarding any minor child or for the termination of parental rights of only one parent provided the application so states: (1) Either or both parents, including a parent who is a minor; (2) the guardian of the child; (3) the selectmen of any town having charge of any foundling child; (4) a duly authorized officer of any child care agency or child-placing agency or organization or any children’s home or similar institution approved by the commissioner of children and youth services; (5) a blood relative of the child, descended from a common ancestor not more than three generations removed from the child, if the parent or parents have abandoned or deserted the child; (6) the commissioner of children and youth services, provided the custodial parent of such minor child has consented to the termination of parental rights and the child has not been committed to the commissioner, and no application for commitment has been made; provided in any case hereunder where the minor child with respect to whom the petition is brought has attained the age of twelve, the minor child shall join in the petition.”

       General Statutes § 45-61b (c) provides: “ ‘Child-placing agency’ means any agency within or without the state of Connecticut licensed or approved by the commissioner of children and youth services in accordance with sections 17-49a and 17-50, and in accordance with standards established by regulations of the commissioner of children and youth services.”

       The record does not indicate whether DCYS has granted approval of the plaintiff pursuant to General Statutes § 45-61b (c) for the purpose of allowing its officers to file a petition for the termination of parental rights.

       “[Regulations of Connecticut State Agencies] Sec. 17-49b-47. approval OP OUT-OP-STATE AGENCIES
      “Out-of-state private child-placing agencies seeking to place children in Connecticut for the purpose of foster care or adoption shall provide:
      “(a) A copy of their current license from the approving authority in their state. If no such license is issued, they must provide a reference statement from the approving authority stating they are authorized to place children in foster care and/or adoption.
      “(b) Description of program must include that within its geographical area the agency does home studies; placements; supervision; and, if they conduct adoptive placements, finalization of adoptions. The agency must also agree to continuing responsibility for placement planning and replacement if the placement fails.
      “(c) Such other information as the Department may require.
      “(d) Notification to the Department of any significant agency changes after approval.
      “(e) If the adoption is finalized prior to bringing or sending the child to Connecticut, the out-of-state agency involved is not required to be approved by the Department under Section 17-51 of the Connecticut General Statutes and the Interstate Compact on the placement of children does not apply.”


author: Arthur H. Healey, J.

text:
    Seymour Hammer v. Lumberman’s Mutual Casualty Company
    (13780)
    Healey, Shea, Callahan, Covello and Hennessy, Js.
    Argued January 2
    decision released April 17, 1990

      Wesley W. Horton, with whom were Jeffrey A. Hoberman and Louis W. Flynn, Jr., for the appellant (plaintiff).

      Barbara B. Sacks, for the appellee (defendant).
   Arthur H. Healey, J.

The plaintiff, Seymour Hammer, brought an action against the defendant, Lumberman’s Mutual Casualty Company, for its alleged failure to continue to provide lifetime disability payments in accordance with the terms of the group disability insurance policy issued to the plaintiff by the defendant. The defendant moved for summary judgment on the basis of an exclusion in the policy that limits benefits to two years if the total disability was caused by or resulted from “medical or surgical treatment.” In granting the defendant’s motion for summary judgment, the trial court held, inter alia, that the plaintiff’s disability resulted from medical or surgical treatment; thus, it denied the plaintiff lifetime disability benefits under the policy. From this judgment, the plaintiff appealed to the Appellate Court, and, pursuant to Practice Book § 4023, we transferred the case to this court.

The pleadings, affidavit and other documentary information presented to the trial court on the motion for summary judgment reveal the following undisputed facts. On August 18,1981, the plaintiff entered Mount Sinai Hospital for treatment of a stomach ulcer condition. As part of his treatment, the plaintiff’s physician ordered a total parenteral nutrition (TPN) line to be installed. On August 28,1981, the plaintiff was found in the bathroom area of his hospital room in a semiconscious state with his TPN line disconnected. As a result of this incident, complications arose that led ultimately to the plaintiff’s total disability. The plaintiff brought suit against Mount Sinai Hospital and several physicians alleging, inter alia, that their negligence and carelessness in the course of treating the plaintiff for his ulcer condition caused his injuries and disability.

At the time of the plaintiff’s total disability, the plaintiff was insured by a group disability insurance policy issued to him by the defendant on July 1,1980. Shortly after August 28,1981, the date the plaintiff was found in a semiconscious condition, the defendant commenced paying monthly disability benefits in accordance with this policy in the amount of $1500 per month and continued to pay disability benefits until October 4,1983. In his amended complaint, the plaintiff alleged that the defendant had failed to continue to pay monthly disability payments in accordance with the terms of the insurance policy. Specifically, the plaintiff claimed that the defendant had an obligation under the policy to continue to make disability payments so long as the plaintiff remained disabled.

On December 30, 1988, the defendant moved for summary judgment. In its motion, the defendant claimed that the plaintiff’s total disability was caused by or resulted from “medical or surgical treatment,” and therefore his benefits, under the terms of the policy, are limited to those provided for under the “sickness” provision. In support of its motion, the defendant attached a copy of the insurance policy, the plaintiff’s responses to the defendant’s requests to admit, a copy of the plaintiffs complaint filed in Hammer v. Mount Sinai Hospital, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 830286323 S (August 23, 1989), and a memorandum of law. In opposition to the defendant’s motion, the plaintiff filed an affidavit from David Bronster, a physician, and a memorandum of law.

On June 8,1989, the trial court granted the defendant’s motion. In granting the motion, the court rejected the plaintiff’s claim that, based on the affidavit of Bronster, the event that occurred on August 28,1981, “was of a complicated nature and was a highly unusual and unforeseen result of the installation of the [TPN line] and that such result must therefore be termed ‘accidental’ giving rise to an issue of material fact which can only be resolved at the time of trial.” The court stated that “[t]he plaintiff ha[d] not produced any documents to contest the defendant’s contention that the plaintiff’s disability resulted] from the installation of the TPN line which in turn was part of his treatment for his ulcer condition.”

The court further stated that the language in the insurance policy, “medical or surgical treatment,” was unambiguous. In so doing, it cited J. Appleman, Insurance Law and Practice § 415, which provides: “ ‘The expression “medical and surgical treatment” when used in the contract, includes all acts done by a physician in the preliminary care, general treatment or later care in order to effect a cure. . . . ’ ” Moreover, the court, in recognizing that our courts had not had occasion to pass upon this question, noted that other jurisdictions had applied similar exclusionary provisions to various mishaps which had occurred during the course of medical treatment, citing Whetsell v. Mutual Life Ins. Co. of New York, 669 F.2d 955 (4th Cir. 1982), and cases cited therein.

In conclusion, the court held that the “alleged negligent installation of the TPN line in connection with the plaintiffs treatment for a stomach ulcer constituted ‘medical or surgical treatment’ and thus the disability resulting therefrom is covered by the ‘sickness’ provisions of the policy.” In addition, the court stated that “[s]ince the defendant has paid the plaintiff for that period called for by such provision of the policy, i.e., two years, it has satisfied its obligation to him.”

On appeal, the plaintiff contends that the trial court erred in (1) granting the defendant’s motion for summary judgment because there existed a genuine issue of fact, and (2) concluding that the exclusionary provision, medical or surgical treatment, applies to improper medical treatment.

I

The plaintiff first contends that the trial court erred in granting summary judgment because there existed a genuine issue of fact, i.e., whether the plaintiff’s total disability was caused by or resulted from “medical or surgical treatment.” He maintains that Bronster’s affidavit, filed by him in opposition to the defendant’s motion for summary judgment, presented evidence that his injury was “accidental in nature.” He asserts that it was a material question of fact whether his injury was the result of medical or surgical treatment or was the unforeseen result of his reaction to the insertion of the TPN line. The defendant contends, however, that the court properly granted its motion for summary judgment for two reasons: (1) the plaintiff failed to present any evidence to the trial court to contest the defendant’s claim that the plaintiff’s disability resulted from the installation of the TPN line which in turn was part of his treatment for his ulcer condition; and (2) the plaintiff is estopped from relitigating the cause of his disability because he is bound by the favorable judgment he received in the medical malpractice suit filed against Mount Sinai Hospital, which, we note, is presently on appeal. We conclude that the trial court did not err in granting the defendant’s motion because the plaintiff failed to present evidence in opposition to the defendant’s contention that the plaintiff’s disability was caused by medical or surgical treatment. Because we agree with the defendant’s first claim, we do not address the defendant’s second claim.

“Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established.” Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 402, 528 A.2d 805 (1987). Practice Book § 384 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” See also Zichichi v. Middlesex Memorial Hospital, supra; Catz v. Rubenstein, 201 Conn. 39, 48, 513 A.2d 98 (1986); Daily v. New Britain Machine Co., 200 Conn. 562, 568, 512 A.2d 893 (1986). “ ‘A “material” fact has been defined adequately and simply as a fact which will make a difference in the result of the case.’ United Oil Co. v. Urban Redevelopment Commission, [158 Conn. 364, 379, 260 A.2d 596 (1969)].” Catz v. Rubenstein, supra. “The test is whether a party would be entitled to a directed verdict on the same facts.” State v. Goggin, 208 Conn. 606, 616, 546 A.2d 250 (1988).

“Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue .... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. ‘Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § 380.’ Bartha v. Waterbury House Wrecking Co., [190 Conn. 8, 12, 459 A.2d 115 (1983)]. ‘The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist.’ Kasowitz v. Mutual Construction Co., 154 Conn. 607, 613, 228 A.2d 149 (1967), quoting Boyce v. Merchants Fire Ins. Co., 204 F. Sup. 311, 314 (D. Conn. 1962) . . . .” Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984); Daily v. New Britain Machine Co., supra, 568-69. “To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant’s affidavits and documents.” State v. Goggin, supra, 616-17.

In support of its motion for summary judgment, the defendant filed a copy of the insurance policy, the plaintiff’s responses to the defendant’s requests to admit, a copy of the plaintiff’s complaint filed in Hammer v. Mount Sinai Hospital, supra, and a memorandum of law. These documents alleged that the plaintiff’s total disability was caused by the negligent installation and maintenance of the TPN line which was installed as part of the plaintiff’s treatment for his ulcer condition. Among the plaintiff’s answers to the defendant’s requests to admit, the plaintiff admitted that “Plaintiff’s physicians at Mt. Sinai Hospital ordered, as part of the treatment for plaintiff’s ulcer condition, that a Total Parenteral Nutrition Line be installed.” (Emphasis added.) We also note that, in the plaintiff’s answers to the defendant’s requests to admit, the plaintiff admitted that he had alleged “that the cause of [his] problem was emboli which occurred as a result of the improper installation of said [TPN] Line or the maintenance of that device . . . .”

In opposition to the defendant’s motion for summary judgment, the plaintiff presented Bronster’s affidavit and a memorandum of law. In the affidavit, Bronster stated, inter alia, that while the plaintiff was in the hospital for his ulcer condition, “a resident physician at Mt. Sinai Hospital in Hartford, Connecticut administered an intravenous device called a Total Parenteral Nutrition Line to [the plaintiff’s] right chest and shoulder area with reported considerable difficulty causing substantial pain and anxiety to the [plaintiff]. As a result of this incident, [the plaintiff] suffered an incident wherein the distribution of certain blood vessels in his brain became infarcted thereby causing him to sustain diverse neurologic signs and symptoms .... As a result of this injury, the Plaintiff remains totally disabled.”

The plaintiff, in arguing and presenting documentary evidence that his total disability was caused by an accident, did not raise a material issue of fact that would have made a difference in the result of the case and consequently would have defeated the defendant’s motion for summary judgment. The factor that was dis-positive on the defendant’s motion for summary judgment was whether the plaintiff’s total disability was caused by or resulted from “medical or surgical treatment.” As will be discussed later in this opinion, the exclusion of medical or surgical treatment applies only if the insured’s total disability was caused by an accident. In arguing that the exclusion applies to the plaintiff, the defendant, in effect, conceded that the plaintiff’s total disability was caused by an accident. It was not enough for the plaintiff, in order to defeat the defendant’s motion, merely to show that his total disability was caused by an accident. To have raised an issue of material fact to the trial court, some evidence showing the existence of an issue of material fact must have been presented in the counteraffidavit. As the trial court found, the plaintiff failed to present such evidence, which was necessary to overcome the defendant’s contention that his total disability was caused by or resulted from “medical or surgical treatment.”

We conclude that there was no issue of material fact presented to the trial court and, thus, the court properly granted the defendant’s motion for summary judgment. “Where the character of a death or injury sustained in connection with medical treatment is determinable from evidence permitting only one conclusion, no submissible case exists.” 10 G. Couch, Insurance (Rhodes 2d Ed.) § 41:127.

II

The plaintiff next contends that the trial court erred in concluding that the exclusionary provision applies to improper medical treatment. Specifically, the plaintiff contends that the trial court erred in (1) finding the exclusionary provision, medical or surgical treatment, unambiguous, and (2) relying on Whetsell v. Mutual Life Ins. Co. of New York, supra, to support its decision. We are not persuaded by the plaintiff’s arguments.

The plaintiff maintains that the term “medical or surgical treatment” is ambiguous because it allows for two reasonable constructions. The plaintiff asserts in his brief that “[o]ne construction is that all medical or surgical treatment, no matter how skillfully or unskillfully performed, is covered by that phrase.” Thus, the plaintiff continues, “patently negligent treatment, such as amputating the wrong leg, would be included within the ambit of this term.” The second construction, which the plaintiff’s brief states is “equally reasonable,” “is that improper treatment, or malpractice, which is an accident, is not included within the meaning of that phrase.” The plaintiff contends, therefore, that because there are two reasonable constructions of the phrase “medical or surgical treatment,” the phrase is ambiguous and, thus, in accordance with familiar principles, should be construed in favor of the plaintiff.

The defendant, on the other hand, contends that the language in the policy is clear and unambiguous. The defendant asserts that there are no words in the policy that require a distinction between “proper and improper” medical treatment. It maintains that the phrase “medical or surgical treatment” applies to any and all treatment. The defendant claims that the policy does not differentiate between the “quality of treatment or whether disability results from negligent medical treatment or from unforeseen consequences of ‘proper’ treatment.”

“It is the function of the court to construe the provisions of the contract of insurance.” Gottesman v. Aetna Ins. Co., 177 Conn. 631, 634, 418 A.2d 944 (1979). We recently noted in Schultz v. Hartford Fire Ins. Co., 213 Conn. 696, 702, 569 A.2d 1131 (1990): “An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract and enforced in accordance with the real intent of the parties as expressed in the language employed in the policy. Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 309, 524 A.2d 641 (1987); Griswold v. Union Labor Life Ins. Co., 186 Conn. 507, 512-13, 442 A.2d 920 (1982); Gottesman v. Aetna Ins. Co., [supra].” “ ‘ “The determinative question is the intent of the parties, that is, what coverage the . . . [plaintiff] expected to receive and what the defendant was to provide, as disclosed by the provisions of the policy.” Marcolini v. Allstate Ins. Co., 160 Conn. 280, 283, 278 A.2d 796 [1971]. Griswold v. Union Labor Life Ins. Co., supra. If the words in the policy “are plain and unambiguous the established rules for the construction of contracts apply, the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning, and courts cannot indulge in a forced construction ignoring provisions or so distorting them as to accord a meaning other than that evidently intended by the parties.” Plainville v. Travelers Indem nity Co., 178 Conn. 664, 675, 425 A.2d 131 (1979). “If the ‘insurance coverage is defined in terms that are ambiguous, such ambiguity is . . . resolved against the insurance company. “Where the terms of the policy are of doubtful meaning, the construction most favorable to the insured will be adopted.” LaBonte v. Federal Mutual Ins. Co., 159 Conn. 252, 256, 268 A.2d 663 (1970); see also Griswold v. Union Labor Life Ins. Co., [supra]; Simses v. North America Co. for Life & Health Ins., 175 Conn. 77, 84-85, 394 A.2d 710 (1978).’ Beach v. Middlesex Mutual Assurance Co., 205 Conn. 246, 250, 532 A.2d 1297 (1987).” Schultz v. Hartford Fire Ins. Co., supra. However, “ ‘[a] court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings.’ Downs v. National Casualty Co., 146 Conn. 490, 494-95, 152 A.2d 316 (1959).” Id., 703. We conclude that the exclusion “medical or surgical treatment” is unambiguous. “Given [the] natural and ordinary meaning, [it] expresses] the intent of the parties.” Marcolini v. Allstate Ins. Co., supra, 284; see A. M. Larson Co. v. Lawlor Ins. Agency, Inc., 153 Conn. 618, 622, 220 A.2d 32 (1966).

A disability insurance policy insures “against the inability to pursue a livelihood arising either from accident or illness.” 1 J. Appleman, Insurance Law and Practice § 23. The disability insurance policy in this appeal insures against total disability resulting from or caused by accident and sickness. Part I of the “Benefits” section of the policy is entitled, “Monthly Accident Indemnity.” Part I provides a lifetime indemnity period for “Total Disability . . . due to injury.” Injury is defined in the definition section of the policy as “bodily injury caused by an accident occurring while the Policy is in force as to the Insured.” (Emphasis added.) Part I further provides: “For the purposes of this Part I any period of Total Disability caused by or resulting from (1) disease or medical or surgical treatment therefor, (2) infection other than pus-forming infection sustained through an accidental cut or wound, or (3) hernia of any kind, however caused, shall be considered as disability from Sickness, subject to the provisions in Part II.” (Emphasis added.) Part II of the “Benefits” section in the policy is entitled “Monthly Sickness Indemnity.” This provision provides benefits for two years for total disability resulting from sickness. Sickness is defined in the policy as “sickness or disease which causes a period of disability, such disability commencing while the Policy is in force as to the Insured.”

The focus of the plaintiffs claim of error is on the exclusionary provision in Part I of the “Benefits” section, specifically, that part of the provision that excludes from lifetime disability benefits total disability “caused by or resulting from . . . medical or surgical treatment.

“Provisions in insurance policies excepting particular losses from the coverage thereof are ordinarily valid, for the parties to a contract of insurance have the right to limit or qualify the extent of the insurer’s liability in any manner not inconsistent with statutory forms or provisions or contrary to public policy. And an insurance company may exclude from coverage death [or disability] caused by any particular accident . . . . ” 10 G. Couch, supra, § 41:378. “The reason for or purpose of an exclusion clause in a policy is to eliminate from coverage specified losses . . . which except for the exclusion clause would remain under the coverage.” Id., § 41:380. “In an insurance policy, an exclusion is a provision which eliminates coverage where, were it not for the exclusion, coverage would have existed.” Kansas-Nebraska Natural Gas Co. v. Hawkeye-Security Ins. Co., 195 Neb. 658, 664, 240 N.W.2d 28 (1976); Modern Sounds & Systems, Inc. v. Federated Mutual Ins. Co., 200 Neb. 46, 50, 262 N.W.2d 183 (1978); Bortz v. Merrimac Mutual Ins. Co., 92 Wis. 2d 865, 871, 286 N.W.2d 16 (1979); see also 3 R. Long, Law of Liability Insurance § 17.15. “[T]he word ‘exclusion’ signifies subject matter or circumstances in which the insurance company will not assume liability for a specific risk or hazard that otherwise would be included within the general scope of the policy. See Keeton, Basic Text of Insurance Law 307 (1971).” Ideal Mutual Ins. Co. v. Lucas, 593 F. Sup. 466, 468 (N.D. Ga. 1983). “It is apparent, then, that before the need for an exclusion arises, there must first be coverage within the defined scope of the policy.” McMahon v. Boston Old Colony Ins. Co., 67 App. Div. 2d 757, 758, 412 N.Y.S.2d 465 (1979). Thus, before the exclusion, “medical or surgical treatment” in Part I can be applied, there must first be coverage under Part I of the policy. As previously noted, Part I provides lifetime disability benefits for total disability caused by an accident. Therefore, the exclusionary provision, “medical or surgical treatment,” eliminates from lifetime disability benefits “accidents” caused by or resulting from “medical or surgical treatment.” See Whetsell v. Mutual Life Ins. Co. of New York, supra, 957.

This interpretation of the exclusion does not include “all medical or surgical treatment, no matter how skillfully or unskillfully performed” as the plaintiff has suggested. In order for the exclusion to apply, there must first be an “accident.” If the “accident” was caused by or resulted from “medical or surgical treatment,” then the insured is limited to disability benefits provided for in the “sickness” provision, i.e., two years. According to the language of the policy, if medical treatment was properly performed or “skillfully” performed, without unforeseen consequences, there would not be an “accident” caused by “medical or surgical treatment,” and thus the exclusion would not apply. One court has said: “[Total Disability] must be caused by an accident before the [lifetime disability] benefits of the policy come into play. An accident is an unintended occurrence. If such happens during medical treatment, it is still an accident, but it is not a risk assumed by the insurance company under the terms of the policy.” Whetsell v. Mutual Life Ins. Co. of New York, supra; see also Pickard v. Transamerica Occidental Life Ins. Co., 663 F. Sup. 126, 127 (E.D. Mich 1987); Reid v. Aetna Life Ins. Co., 440 F. Sup. 1182, 1183 (S.D.Ill. 1977), aff'd, 588 F.2d 835 (7th Cir. 1978); Bracey v. Metropolitan Life Ins. Co., 54 Misc. 2d 175, 180, 282 N.Y.S.2d 121 (1967). The only reasonable interpretation of the exclusionary provision is that it specifically excludes from lifetime disability benefits accidents caused by or resulting from “medical or surgical treatment” causing total disability. Thus, the trial court did not err in finding the exclusionary provision, “medical or surgical treatment,” unambiguous.

The plaintiff contends, however, that this interpretation is inconsistent with the reasonable expectations of an insured. He asserts that an insured would not expect the exclusion to encompass improper “medical or surgical treatment” but rather only complications arising from proper treatment. He maintains that the risks attendant with proper treatment, not improper treatment, are the risks a reasonable person would import to those terms. There is no question raised in this case as to whether the plaintiffs total disability was caused by an accident, i.e., improper or negligent medical treatment. The insurance policy does not, however, provide lifetime disability benefits for all accidents causing total disability. The exclusionary provision excludes not only accidents resulting from or caused by “disease or medical or surgical treatment therefor,” but also “infection other than pus-forming infection sustained through an accidental cut or wound” and “hernia of any kind, however caused.” “These were obviously inserted for the purpose of withdrawing from the coverage certain specific risks.” O’Brien v. John Hancock Mutual Life Ins. Co., 143 Conn. 25, 28, 119 A.2d 329 (1955). Moreover, although the policy excludes these risks from lifetime disability benefits, it provides benefits for such risks for two years under the “sickness” provision.

“The average policyholder could not reasonably reach a conclusion of coverage in the particular circumstances here ‘in the light of and having in mind the language of the . . . [exclusionary provision].’ Harris v. John Hancock Mutual Life Insurance Co., [41 N.J. 565, 568, 197 A.2d 863 (1964)]. Adoption of the plaintiff’s contention in the light of the . . . language of the [exclusionary provision] here would ‘render meaningless the words by which the parties expressed their bargain’ and read into the contract something which is not there.” Dinkowitz v. Prudential Ins. Co., 90 N.J. Super. 181, 189, 216 A.2d 613 (1966). When the language of the policy is clear and unambiguous, the court is bound to apply the natural and ordinary meaning of the words employed. See Schultz v. Hartford Fire Ins. Co., supra. A court cannot rewrite the policy of insurance or read into the insurance contract that which is not there. See Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 282, 492 A.2d 180 (1985). “[T]he liability of the insurer is not to be extended beyond the express terms of the contract.” Plainville v. Travelers Indemnity Co., supra, 675. Therefore, given the natural and ordinary meaning, the policy expresses the reasonable expectations of the parties. General Construction Co. v. Aetna Casualty & Surety Co., 151 Conn. 684, 686, 202 A.2d 146 (1964). We, therefore, cannot accept the plaintiffs claims concerning reasonable expectations.

The plaintiff next contends that the trial court erred in relying on Whetsell v. Mutual Life Ins. Co. of New York, supra. He maintains that Whetsell is “poor logic.” He asserts that a “serious flaw in the Whetsell decision is its rationale that the exclusionary provision would be rendered meaningless if it did not apply to medical malpractice.” He contends that this rationale is based on the following incorrect assumption: “Since all deaths caused by medical treatment necessarily involve mistreatment, to say that mistreatment is not covered by the exclusion is to say that the provision excludes nothing.” Id., 957. We do not agree.

In Whetsell v. Mutual Life Ins. Co. of New York, supra, 956, the plaintiff brought an action against the defendant, claiming that she was entitled to double indemnity for accidental death under the life insurance policies issued by the defendant on the life of her husband. The plaintiffs husband, while in the hospital recovering from cataract surgery, was intravenously given a saline solution. Id. An infected intravenous needle was used, however, causing the decedent to contract bacterial endocarditis from which he died. The insurance policy under which the decedent was insured provided for accidental death benefits if the death occurred “(a) directly and independently of all other causes, as a result of accidental bodily injuries . . . (c) from a cause not mentioned under ‘Risks Not Assumed.’ ” Id. The policy provided under “Risks not Assumed” that the company is not liable for “death caused or contributed to, directly or indirectly, by disease, by bodily or mental infirmity, or by treatment or operation for disease or bodily or mental infirmity.” (Emphasis in original.) Id.

Prior to deciding whether the above provision excluded from coverage death caused by medical mistreatment, the Whetsell court noted that “every court that has considered similar exclusionary clauses has held such provisions to exclude from coverage death caused by various mishaps occurring during the course of medical treatment.” Id. In particular, the court stated that the case most similar to the facts presented to it was Reid v. Aetna Life Ins. Co., supra. In Reid, the court held that death caused by a poison that was inadvertently substituted for a saline solution fell within the exclusionary provision excluding accidental death benefits coverage for death “ ‘caused or contributed to by, or as a consequence of . . . medical or surgical treatment.’ ” Id., 957. In Whetsell, the court noted that “to come to a conclusion different from that of the Reid court would render the exclusionary provision meaningless. Death is never caused by medical treatment absent some misdiagnosis or mistake. Though death may result where proper medical treatment is unsuccessful, death in those cases is caused by the preexisting infirmity, not medical treatment. Since all deaths caused by medical treatment necessarily involve mistreatment, to say that mistreatment is not covered by the exclusion is to say that the provision excludes nothing.” Id. The court further noted that: “Death must be caused by an accident before the accidental death benefits of the policy come into play. An accident is an unintended occurrence. If such happens during medical treatment, it is still an accident, but it is not a risk assumed by the insurance company under the terms of the policy. The use of an infected I.V. needle was not intended, therefore, it was an accident. However, this occurred as a part of medical treatment, so it is excluded by the clear language of the policy.” Id.

It is clear that the plaintiff has isolated a part of the court’s rationale in arguing that Whetsell is “poor logic.” The court’s reasoning that the exclusionary provision would be rendered meaningless if it did not apply to “mistreatment” is based on the clear language of the policy. Id. The insurance policy involved in Whetsell provided double recovery in the event of accidental death. The policy specifically excluded, however, accidental “death caused ... by treatment.” The court reasoned that if the exclusion did not apply to an accident that occurred during medical treatment resulting in the death of the insured, it would exclude nothing. If there was no accident during treatment, then there would not be coverage for accidental death and, thus, the exclusion would not be triggered. The court then, applying the facts to the exclusion, found the insured’s death to have been an accident that occurred during medical treatment, on the basis of the “clear language of the policy,” denied the plaintiff double recovery for accidental death. Contrary to the plaintiff’s contention, we conclude that the decision in Whetsell is based on sound logic.

Moreover, in accordance with the reasoning in Whetsell, if the exclusion in the present case, “medical or surgical treatment,” did not apply to improper treatment resulting in an “accident,” we conclude that it would “exclude nothing.” The exclusionary provision in the present case, as already noted, is encompassed within Part I of the “Benefits” section of the policy. The exclusion specifically excludes accidents caused by medical or surgical treatment. As one court noted: “[A] construction of an exclusion clause which merely exclude[s] losses that . . . [are] not the proximate result of an insured risk would be meaningless because there could be no liability for such losses in the absence of an exclusion.” Commercial Standard Ins. Co. v. Gilmore, Gardner & Kirk Oil Co., 157 F.2d 929, 931-32, (10th Cir. 1946). In other words, if the exclusion does not exclude a risk that is covered in the policy, it is meaningless. Therefore, if the exclusion does not apply to total disability caused by an accident that occurred during medical or surgical treatment, it would be rendered meaningless. “ ‘Every provision is to be given effect, if possible, and no word or clause eliminated as meaningless, or disregarded as inoperative, if any reasonable meaning consistent with the other parts of the policy can be given to it.’ Downs v. National Casualty Co., [146 Conn. 490, 495, 152 A.2d 316 (1959)].” Schultz v. Hartford Fire Ins. Co., supra, 706.

Further, we note that since Whetsell has been decided, several courts have relied on Whetsell and have applied similar reasoning. Pickard v. Transamerica Occidental Life Ins. Co., 663 F. Sup. 126 (E.D. Mich. 1987); Krane v. Aetna Life Ins. Co., 698 F. Sup. 220 (D. Colo. 1988); Castorena v. Colonial Life & Accident Ins. Co., 107 N.M. 460, 760 P.2d 152 (1988); see also Simmons v. Provident Mutual Life Ins. Co. of Philadelphia, 496 So. 2d 243 (Fla. App. 1986); Cheney v. Bell National Life Ins. Co., 315 Md. 761, 556 A.2d 1135 (1989); Beveridge v. Hartford Accident & Indemnity Co., 95 Or. App. 658, 770 P.2d 943 (1989).

We, therefore, do not agree with the plaintiffs attack on Whetsell.

There is no error.

In this opinion the other justices concurred.

       On August 23, 1989, the jury returned a verdict in Hammer v. Mount Sinai Hospital, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 830286323 S, in favor of the plaintiff against Mount Sinai Hospital and Douglas Whittemore, a physician, in the amount of $460,000. That judgment is now on appeal.

       See footnote 4, infra.

       The plaintiff relies on Mayfield v. Metropolitan Life Ins. Co., 585 S.W.2d 163 (Mo. App. 1979), for support of his contention that the trial court erred in granting the motion for summary judgment because an issue of material fact existed. We find Mayfield v. Metropolitan Life Ins. Co., supra, inapposite. In that case, the plaintiff appealed to the Missouri Court of Appeals from a jury verdict in favor of the defendant. Id., 164. The plaintiff brought an action against the defendant for the “double indemnity benefit” contained in an insurance policy issued by the defendant on the life of Loomis Mayfield, the plaintiff’s husband. Loomis Mayfield underwent surgery for an exploratory laparotomy and colostomy. Id., 165. During the course of the surgery, Loomis was anesthetized and an endotracheal tube was inserted. After surgery, Loomis was transferred to the intensive care unit with the tube still intact. Soon after Loomis was in that unit, the tube became dislodged. Immediately following the tube dislodgement, Loomis became comatose and remained in that condition until his death. Id.
      The trial court, in instructing the jury, stated that “[y]our verdict must be for the Defendant if you believe . . . That Loomis F. Mayfield’s death was the direct result of any one or more of the conditions referred to in Paragraph First.” (Emphasis added.) Id., 165 n.2. Paragraph First referred to medical or surgical treatment. The Court of Appeals held that this instruction was “prejudicially erroneous in that there was no evidentiary support for the proposition set forth in it that the death of Loomis directly resulted from medical or surgical treatment.” Id., 168. The policy at issue in May-field eliminated coverage if the death resulted “directly or indirectly” from medical or surgical treatment. Id., 166. The court, in referring to several cases that have applied a similar exclusion, stated: “In each of the foregoing cases the administration of treatment played the fatal role. In the case at bar the evidence, if believed by the jury, supported a finding that the cessation of treatment, occasioned by the dislodgement, was the death-producing factor. There is no evidence to show that the dislodgement of the tube inflicted a physical injury. It was merely a matter of the tube, upon dislodgement, no longer performing its beneficial function.” Id., 169.
      This case is inapposite to the present case. The court in Mayfield noted that there was no evidence to support the trial court’s instruction that Loomis’ death directly resulted from medical or surgical treatment. Contrary to Mayfield, the trial court in the present case was presented with evidence that the plaintiff’s total disability did result from medical or surgical treatment as set out in this opinion.

       The group disability insurance policy provides in part:
      “GROUP DISABILITY INSURANCE CERTIFICATE_ LUMBERMENS MUTUAL CASUALTY COMPANY
      A mutual insurance company, herein called the Company
      Long Grove, IL 60049
      notice: see exclusion endorsement included herein
      HEREBY CERTIFIES that the Person (herein individually called the Insured) named in the Schedule of Benefits (hereinafter called the Schedule) is insured under and subject to all the exceptions, conditions, limitations and other terms of the group policy identified in the Schedule, said policy having been issued to the Holder named in the Schedule.
      PERTINENT PROVISIONS OF THE GROUP POLICY
      DEFINITIONS
      ‘Injury’ shall mean bodily injury caused by an accident occurring while the Policy is in force as to the Insured.
      ‘Sickness’ shall mean sickness or disease which causes a period of disability, such disability commencing while the Policy is in force as to the Insured. ‘Total Disability’ shall mean disability wholly and continuously preventing the Insured from performing the duties of his occupation but in no event shall ‘Total Disability’ commence more than fifteen days before the earliest date during such disability on which the Insured received regular care and attendance of a legally qualified physician other than the Insured, nor shall it continue unless the Insured thereafter receives regular care of such physician; provided that in no event shall ‘Total Disability’ exist for any purpose of the Policy during any period in which the Insured is engaged in the duties of his occupation, nor shall ‘Total Disability’ exist for any purpose of the Policy following a five year period for which benefits are payable, if the Insured is not wholly and continuously disabled by reason of Injury or Sickness from engaging in any occupation or employment for wage or profit for which he is qualified or becomes qualified by reason of his education, training or experience.
      ‘Regular care and attendance of a legally qualified physician other than the Insured’ shall mean a planned program of observation and treatment by such physician which, once initiated, is continued to the extent that observation and treatment is necessary under existing standards and customs of medical practice for the condition causing disability.
      ELIGIBILITY AND EFFECTIVE DATE OF ELIGIBLE PERSON’S INSURANCE
      Evidence of insurability satisfactory and acceptable to the Company must be furnished without expense to the Company.
      In the event the insurance of an Insured is terminated by reason of section (f) of INDIVIDUAL TERMINATIONS, such person shall be qualified for insurance, without evidence of insurability, identical to that which was in force immediately prior to such termination, provided such person makes written application for insurance within sixty days after again becoming an Eligible Person.
      Insurance hereunder with respect to an Eligible Person shall become effective on the date specified by the Company, provided that such person is an Eligible Person on such date, and provided further that if any Eligible Person is prevented by physical or mental impairment form actively performing the full-time duties of his occupation on the date immediately preceding the date on which insurance would otherwise become effective, insurance shall become effective on the date such physical or mental impairment is no longer disabling. The effective date of the insurance hereunder with respect to each Insured will be subject to the payment of the appropriate premium as stated in the Schedule.
      BENEFITS
      PART I — MONTHLY ACCIDENT INDEMNITY
      If Total Disability of the Insured due to Injury commences while the Policy is in force as to the Insured, the Company will pay periodically the Monthly Indemnity stated in the Schedule applicable to the Insured for each month (one-thirtieth of the monthly indemnity rate for each day of any period less than one month) throughout which such Total Disability continues beyond the Elimination Period for Accident as stated in the Schedule applicable to the Insured, but not to exceed the Indemnity Period Limit for Accident stated in the Schedule applicable to the Insured for any one period of Total Disability.
      If a period of Total Disability commencing while the Policy is in force as to the Insured results from causes which are the same as, or related to, the causes of any prior period of the Total Disability with respect to which Monthly Indemnity has been payable under this Part I, the subsequent period shall be considered as a continuation of the prior period for all purposes of this Part I but in no event shall the benefits payable for such subsequent periods of disability exceed in the aggregate the Indemnity Period Limit for Sickness as stated in the Schedule applicable to the Insured. Monthly Indemnity will not be payable under this Part I while the Insured is receiving indemnity as provided in Part II of the Policy, or during any continuous period of Total Disability due to Sickness immediately following the expiration of the Indemnity Period Limit for Sickness as stated in the Schedule applicable to the Insured.
      For the purposes of this Part I any period of Total Disability caused by or resulting from (1) disease or medical or surgical treatment therefor, (2) infection other than pus-forming infection sustained through an accidental cut or wound, or (3) hernia of any kind, however caused, shall be considered as disability from Sickness, subject to the provisions in Part II.
      PART II — MONTHLY SICKNESS INDEMNITY
      If Sickness results in Total Disability of the Insured, the Company will pay periodically the Monthly Indemnity specified in the Schedule applicable to the Insured for each month (one-thirtieth of the Monthly Indemnity rate for each day of any period less than one month) throughout which such Total Disability continues beyond the Elimination Period for Sickness, as stated in the Schedule applicable to the Insured, but not to exceed the Indemnity Period Limit for Sickness as stated in the Schedule applicable to the Insured for any one period of Total Disability. In no event, however, will the Monthly Indemnity be payable under this Part II beyond the Insured’s seventy-second birthday anniversary.

        If a period of Total Disability commencing while the Policy is in force as to the Insured results from causes which are the same as, or related to, the causes of any prior period of Total Disability with respect to which Monthly Indemnity has been payable under this Part II, the subsequent period shall be considered as a continuation of the prior period for all purposes of this Part II unless the Insured has engaged in all the duties of his occupation or has been capable of engaging therein, for at least six full months between such periods of Total Disability.
      Monthly Indemnity will not be payable under this Part II while the Insured is receiving indemnity as provided in Part I of the Policy.
      PART III — WAIVER OF PREMIUM
      Upon due proof that Total Disability of the Insured for which indemnity is payable under the Policy has continued for six months while the Policy is in force as to such Insured, the Company will waive the payment of any premium of such Insured becoming due during any further continuous period of Total Disability for which Indemnity is payable and the Policy shall remain in force as to the Insured during such further period, subject to the provisions of INDIVIDUAL TERMINATIONS except as to the payment of premium.
      INDIVIDUAL TERMINATIONS
      The insurance of any Insured shall immediately terminate; (a) on the date the Policy is terminated; (b) on the date the Insured retires or ceases to be actively engaged in the duties of his occupation unless cessation of the Insured’s engaging in such occupation is due to Total Disability; (c) on the date the Insured ceases to be a member of the Merchants & Employees Regional Insurance Trust; (d) on the premium due date coinciding with or first following the Insured’s seventieth birthday anniversary; (e) on the expiration of the grace period, if the Insured fails to make the required premium payment; or (f) on his becoming a full-time Member of the armed services of any country, except for temporary duty of thirty days or less. The Company will refund premium pro rata upon request for any period for which coverage is not afforded by reason of this provision. Termination of the insurance of any Insured shall be without prejudice to any claim of such Insured for a period of disability commencing prior thereto.
      INDIVIDUAL CERTIFICATES
      This provision in the Group Policy, not contained in this Certificate, relates to the fact that an individual Certificate will be issued to each Insured.”

       The schedule of benefits provides:

       The plaintiff further contends, in an attempt to discredit Whetsell v. Mutual Life Ins. Co. of New York, 669 F.2d 955 (4th Cir. 1982), and the trial court’s reliance on Whetsell, that the cases cited in footnote 1 of the Whetsell decision do not support the trial court’s holding in this case. He maintains that only two of the cases deal with improper treatment. The rest of the cases, he contends, deal with unusual reactions or complications arising during the course of proper treatment.
      We are unpersuaded by the plaintiff’s analysis of the cases cited in the footnote of the Whetsell decision. We will not, however, embark on the task of presenting and analyzing each of the twelve cases cited in the footnote as the plaintiff and the defendant have attempted to do in their briefs. We do note, however, that several of those cases cited indicate that before the courts applied the exclusion of “medical or surgical treatment,” they first found that the decedent’s death was caused by an accident, although the courts did not engage in much discussion or analysis as to the cause of the accident. See Barkerding v. Aetna Life Ins. Co., 82 F.2d 358 (5th Cir. 1936); McKay v. Banker’s Life Co., 187 N.W.2d 736 (Iowa 1971); Pitman v. Commercial Travellers Eastern Accident Assn., 284 Mass. 467, 188 N.E. 241 (1930); Century Indemnity Co. v. Carroll, 126 Tex. 214, 86 S.W.2d 1083 (1935). One case cited in footnote 1 of Whetsell applied the exclusion of medical or surgical treatment without a finding that the injury was caused by an accident because the exclusionary provision did not require the initial finding of an accident unlike the policy presented in the present case. See Order of United Commercial Travelers v. Shane, 64 F.2d 55 (8th Cir. 1933).

       In addition, the plaintiff contends that Whetsell v. Mutual Life Ins. Co. of New York, 669 F.2d 955 (4th Cir. 1982), is poor history. He asserts that “[ejarlier in the century, it appears to have been common for accident policies to exclude coverage unless the injuries were caused by ‘accidental means.’ ” He then cites several cases that discuss the difference between “accidental means” and “accidental results.” He declares that “[ijnsurance companies apparently became concerned that the phrase ‘accidental means’ was spawning too much conflict among the courts, for beginning in the 1960’s the language found in the present policy starts appearing in litigation in lieu of the phrase ‘accidental means.’ ” Thus, the plaintiff asserts, “a sensible historical interpretation of the present language is that its purpose was to insure to the extent possible” that accident coverage would be denied for injuries that were unusual or unexpected. We do not agree.
      We note that the plaintiff has failed to cite authority for this “historical interpretation” and “purpose” of the exclusionary provision involved in this case. In addition, we point out that the words “medical and surgical treatment” have been cited in cases as part of an exclusion in an insurance policy since at least the 1980s, contrary to the plaintiff’s statement that this language began to appear in insurance policies in the 1960s. See Barkerding v. Aetna Life Ins. Co., 82 F.2d 358 (5th Cir. 1936); Order of United Commercial Travelers v. Shane, 64 F.2d 55 (8th Cir. 1933); Pitman v. Commercial Traveller’s Eastern Accident Assn., 284 Mass. 467, 188 N.E. 241 (1930); New Amsterdam Casualty Co. v. Perryman, 162 Miss. 864, 140 So. 342 (1932); Century Indemnity Co. v. Carroll, 126 Tex. 214, 86 S.W.2d 1083 (1935). Thus, it does not appear that the purpose of the exclusion, medical or surgical treatment, was, as the plaintiff contends, in response to the conflict concerning accidental means and accidental results.