text:
    Union Trust Company v. Joseph Heggelund et al.
    (14235)
    Peters, C. J., Shea, Callahan, Covello and Borden, Js.

      Argued May 28
    decision released July 23, 1991

      Leonard M. Horvath, for the appellant (defendant Linwood R. Clark, Jr.).

      Willa B. Perlmutter, with whom were Irving H. Perlmutter and, on the brief, Gary P. Sklaver, for the appellee (plaintiff).

      Michael D. O'Connell filed a brief for the Connecticut Attorneys Title Insurance Company as amicus curiae.
   Peters, C. J.

The dispositive issue in this case is whether, under General Statutes § 52-380a(b), the entire amount of a judgment lien relates back to the date of a prior attachment, or whether the relation back is limited to the amount of the attachment. After a decree of foreclosure by sale to enforce a judgment lien held by the plaintiff, Union Trust Company (Union Trust), against the named defendant, Joseph Heggelund, Union Trust filed a motion for supplemental judgment asserting its rights to the entire balance of the funds generated by the sale. The defendant Linwood R. Clark, Jr. (Clark), another encumbrancer of the named defendant, filed an objection to this motion. The trial court, Kaplan, J., rendered a supplemental judgment in favor of Union Trust, from which Clark appealed to the Appellate Court. We transferred the appeal here pursuant to the provisions of Practice Book § 4023, and now reverse.

The undisputed facts are as follows. On April 24, 1987, Union Trust recorded a prejudgment attachment on property owned by the named defendant, Joseph Heggelund, in the amount of $23,000. On November 3, 1988, Union Trust filed a judgment lien, referring to the attachment, for $29,171.80 plus postjudgment interest. In the interim, Clark had placed an additional encumbrance on the property in the form of an attachment for $30,000. A foreclosure auction was held, at which Union Trust purchased the property for $40,000. The sale resulted in net proceeds, after the payment of expenses, in the amount of $33,225.56. Since the further accrual of interest charges had increased the Union Trust claim to more than $35,000, it sought a judicial order for payment to it of all the net proceeds of the foreclosure sale. Clark filed a timely objection.

In its supplemental judgment directing disbursal of the sale proceeds, the trial court determined that Union Trust was entitled to priority over Clark for the entirety of its judgment lien and not merely, as Clark had contended, for the $23,000 of the original Union Trust attachment. The court concluded that the current statute governing prejudgment remedies had impliedly overruled the rationale behind earlier case law limiting the priority of the lien of an attaching creditor to the amount stated in the attachment. It also found that Clark had no special rights as an intervening creditor, because he had not relied on Heggelund’s equity in the real estate when he extended Heggelund credit and had not risked his own money in the foreclosure sale at which Union Trust bought the secured property.

Clark’s appeal challenges the trial court’s conclusion of law about the extent of the Union Trust priority as well as the court’s findings concerning Clark’s status as a competing creditor. We will consider the legal issues and the factual issues separately.

Clark contends that the trial court improperly concluded that the full value of Union Trust’s judgment lien had priority over encumbrances filed after the attachment, even though the judgment lien exceeded the amount of the attachment. Clark rests his argument on Hubbell v. Kingman, 52 Conn. 17 (1884), in which this court construed a statute substantially identical to the present statute. We held in Hubbell that an attachment of real estate creates a lien only for the amount that it directs the officer to attach, although the later judgment for which the attachment furnishes security may be for a larger amount.

Union Trust, like the trial court, counters that Hub-bell should be overruled, either because its rationale has been undermined by subsequently enacted statutes or because it was wrongly decided. Union Trust urges us to conclude that Hubbell is outdated because it relied in part on the fact that a plaintiff’s attorney, as an officer of the court, was then empowered to determine the amount of the attachment without prior court approval. “The lien results from the act of the officer and not from any action by the court. The court can neither originate it nor enlarge it.” Hubbell v. Kingman, supra, 20. By contrast, since the enactment of General Statutes § 52-278a et seq. in 1973, it is the trial court that determines, after a hearing, whether a writ of attachment should issue and, if so, in what amount.

There is, however, no evidence that the legislature intended to change the longstanding rule concerning priority of claims when it amended the statute governing attachments. We have noted that the 1973 act was passed in order to comply with then recent United States Supreme Court cases prescribing standards of due process in certain creditor proceedings affecting property rights. Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 581-82, 376 A.2d 60 (1977); see 16 H.R. Proc., Pt. 12, 1973 Sess., pp. 5837, 5839, 5841.

Our prejudgment remedy statutes read in their entirety support the proposition that the priority of an attachment depends on the amount stated in the attachment itself. In undertaking the probable cause analysis that our present statute requires, a court is required to consider not only the validity of the plaintiffs claim but also the amount that is being sought. See Solomon v. Aberman, 196 Conn. 359, 379, 493 A.2d 193 (1985); Essex Group, Inc. v. Ducci Electric Co., 181 Conn. 524, 525-26, 436 A.2d 16 (1980); Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, supra, 585. Such an analysis would be pointless if the attachment were to be “a growing quantity, increasing with the accumulation of costs and enlarging as more damages are demanded.” Hubbell v. Kingman, supra, 20. Similarly, if the amount of the attachment has no juridical significance, there would be no purpose in the statutory proceedings permitting judicial modification of that amount. General Statutes § 52-278k. Unless the attachment is limited to the sum stated, a plaintiff could establish priority over all subsequent encumbrancers by showing at the time of the attachment probable cause for the validity of a claim of one dollar. “ ‘ “[Statutes should be construed so that no part of a legislative enactment is to be treated as insignificant and unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase in a legislative enactment.” ’ ” 84 Century Limited Partnership v. Board of Tax Review, 207 Conn. 250, 263, 541 A.2d 478 (1988), quoting State ex rel. Kennedy v. Frauwirth, 167 Conn. 165, 168, 355 A.2d 39 (1974). Courts must presume that the General Assembly did not intend to enact useless legislation. Bergner v. State, 144 Conn. 282, 287, 130 A.2d 293 (1957).

Moreover, the fact that a writ of attachment did not originate with the court was only one of several independent rationales for the result in Hubbell. The court in Hubbell also reasoned that the power to attach property on mesne process “is conferred by statute, and being in derogation of the common law it should receive a strict rather than a liberal construction.” Hubbell v. Kingman, supra, 19. We continue to follow this rule of construction. See Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 573, 522 A.2d 763 (1987). Because attachment liens have no common law counterparts; Connecticut v. Doehr, 500 U.S. , 111 S. Ct. 2105, 2115, 115 L. Ed. 2d 1 (1991); statutes permitting them have always been strictly construed. Atlas Garage & Custom Builders, Inc. v. Hurley, 167 Conn. 248, 257-58, 355 A.2d 286 (1974).

Union Trust contends that in Hubbell the court misread the plain language of the governing statutes, which have never expressly limited the amount of the judgment that relates back to the date of attachment. It is true that the statute says nothing about the amount that relates back. To the extent that this statutory lacuna creates an ambiguity, the ambiguity must be resolved by the traditional rule of strict construction of statutes in derogation of the common law, a rule of which the legislature was presumably aware when it enacted the statute. Furthermore, since Hubbell, the legislature has repeatedly reenacted the prejudgment remedy statute without significantly changing that part of its language that is presently pertinent. “[Tjhe legislature is presumed to be aware of the interpretation of a statute and ‘. . . its subsequent nonaction may be understood as a validation of that interpretation.’ ” Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 134, 527 A.2d 672 (1987), quoting Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 439, 525 A.2d 91 (1987). This presumption is strengthened when the legislature has “affirmatively reenacted” the statute after the interpretation in question. Phelps Dodge Copper Products Co. v. Groppo, supra, 134; see also Turner v. Scanlon, 146 Conn. 149, 156, 148 A.2d 334 (1959).

Strong policy reasons also supported, and continue to support, the rule of Hubbell. “A maximum limitation is essential in order to preserve the integrity and efficiency of our recording system. The policy of that system, which is rigidly adhered to, requires that the record shall disclose, as nearly as may be, the true state of the title and the nature and extent of the incumbrance upon it. . . . Sound policy requires that the extent of [the lien] shall be known as soon as it exists, in order to preserve the rights of third persons and prevent unnecessary restrictions upon the sale of property.” Hubbell v. Kingman, supra, 20. To the extent that authorities in other jurisdictions have addressed this issue, they have concurred with the holding oí Hub-bell. We therefore conclude that the trial court should have limited the Union Trust priority rights to the foreclosure sale proceeds to $23,000.

The trial court also found that Clark was not an eligible claimant to that portion of the foreclosure sale proceeds to which Union Trust had no priority. The evidence does not support the factual basis relied upon for this determination and we also disagree with the legal conclusions that the trial court drew therefrom.

The trial court first found that Clark had not relied on Heggelund’s equity in the real estate when Clark became Heggelund’s creditor. Clark correctly notes that the trial court had no evidentiary foundation for such a finding. Furthermore, the rights of an intervening lien creditor do not depend on a factual showing of reliance, either under the relevant statute; General Statutes § 49-27; or the relevant cases. City National Bank v. Stoeckel, 103 Conn. 732, 744, 132 A. 20 (1926).

The trial court also faulted Clark for not having risked his own money at the foreclosure auction. This factual determination is inconsistent with the report of the committee that undertook the foreclosure sale. That report indicates that Clark was a qualified bidder, had made the required $15,000 deposit and actually made two good faith bids to purchase the property. The court furthermore cited no authority, nor has Union Trust suggested any, for the proposition that the statutory allocation of the proceeds of a foreclosure sale depends on participation in the foreclosure sale itself.

The judgment is reversed and the case is remanded with direction to render a supplemental judgment in accordance with this opinion.

In this opinion the other justices concurred.

       General Statutes § 52-380a provides in relevant part: “JUDGMENT LIEN ON BEAL PROPERTY. . . .
      “(b) From the time of the recording of the judgment lien certificate, the money judgment shall be a lien on the judgment debtor’s interest in the real property described. If, within four months of judgment, the lien is placed on real property which was previously attached in the action, the lien on that property shall hold from the date of attachment, provided the judgment lien certificate contains a clause referring to and indentifying the attachment, substantially in the following form: ‘This lien is filed within four months after judgment in the action was rendered and relates back to an attachment of real property recorded on (month) (day) (year), at Volume Page of the land records.’ ”

       Acts of 1878, c. 58, codified at General Statutes (1888 Rev.) § 3032, provided in pertinent part: “Such judgment, from the time of filing such certificate, shall constitute a lien upon the real estate described in such certificate; and if such lien be placed upon real estate attached in the suit upon which such judgment was predicated, and within four months after such judgment was rendered, it shall hold from the date of such attachment.”

       The recent decision of the United States Supreme Court in Connecticut v. Doehr, 500 U.S. , 111 S. Ct. 2105, 115 L. Ed. 2d 1 (1991), in which an ex parte attachment pursuant to the Connecticut statute in a tort action was held to violate due process, has no direct bearing on this controversy. The record does not indicate whether the attachments involved here were ex parte. If they were not, Doehr would not apply. Even if the attachments were ex parte, this is not a tort suit, but a suit on a debt, and “disputes between debtors and creditors more readily lend themselves to accurate ex parte assessments of the merits.” Id., 2115. Here, as in Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S. Ct. 1895, 40 L. Ed. 2d 406 (1974), “the risk of error was minimal because the likelihood of recovery involved uncomplicated matters that lent themselves to documentary proof . . . .” Connecticut v. Doehr, supra. Moreover, even if the attachment somehow infringed upon the named defendant’s due process rights, the parties to this appeal do not have standing to vindicate this claim. One of them secured the attachment in question and the other had timely notice of its existence at least to the extent of the amount originally attached. Indeed, no due process claims were asserted in the trial court in this case, and none has been asserted here.

       Union Trust contends that, because the amount of the attachment can be modified by the court, the land records already provide little real notice to subsequent claimants, because lienors who file after the original attachment receive no notice of the subsequent modification. Because this is not a case in which a plaintiff has persuaded the court to increase the amount attached but has neglected to record the modification, we do not reach this issue. We have upheld against third parties mortgages which fail to state the maximum term of the obligation they secure, but this was because the record “include[d] enough information to allow subsequent creditors, ‘by common prudence and by the exercise of ordinary diligence, [to] ascertain the extent of the incumbrance.’ ” Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 580, 522 A.2d 763 (1987), quoting First National Bank v. National Grain Corporation, 103 Conn. 657, 663, 131 A. 404 (1925). Where the encumbrance is an involuntary attachment, however, absent the rule of Hubbell v. Kingman, 52 Conn. 17 (1884), the land records would not “ ‘put anyone interested in the inquiry upon a track leading to discovery . . .’ Dart & Bogue Co. v. Slosberg, supra, 579, quoting Sadd v. Heim, 143 Conn. 582, 586, 124 A.2d 522 (1956); since the plaintiff in a lawsuit has no obligation to disclose the merits of its claim to third parties. In cases in which periodic payments without a definite limit were collectible against an attachment, the amount of the attachment itself was a sum certain. See Artman v. Artman, 111 Conn. 124, 149 A. 246 (1930); Hein v. Hein, 10 Conn. Sup. 319 (1941).

       See, e.g., Routt County Co. v. Stutheit, 101 Colo. 254, 257, 72 P.2d 692 (1937), quoting Tilton v. Cofield, 2 Colo. 392, 399 (1874); Matter of People (Second Russian Ins. Co.), 255 N.Y. 412, 414-15, 175 N.E. 113 (1931) (Cardozo, C.J.); Syracuse City Bank v. Coville, 19 How. Pr. 385 (N.Y. 1860); see also Glendale Fruit Co. v. Hirst, 6 Ariz. 428, 433, 59 P. 103 (1899); C. Drake, Suits by Attachment (6th Ed. 1885) § 227, pp. 207-208; 1 R. Shinn, Attachment and Garnishment (1896) § 317, p. 610; R. Waples, Attachment and Garnishment (2d Ed. 1895) § 911, p. 617 (citing Hubbell v. Kingman, 52 Conn. 17 [1884]). Union Trust suggested at oral argument that there was some authority to the contrary, but the cases in the source cited by counsel hold only that, between the immediate parties, when the judgment exceeds the amount of the attachment, the entire amount of the judgment may be recovered from the attached property. None of these cases involved the rights of third parties who encumbered the land after attachment but before judgment. See 7 C.J.S., Attachment (1980) § 207, p. 505, citing Miller & Chesney v. James, 86 Iowa 242, 53 N.W. 227 (1892); Searle v. Preston, 33 Me. 214 (1851); Rhodes v. Samuels, 67 Neb. 1, 93 N.W. 148 (1903).


source: Caselaw Access Project

author: Glass, J.

license: Public Domain

text:
    State of Connecticut v. Timothy James Durkin
    (14203)
    Shea, Callahan, Glass, Covello and Borden, Js.
    Argued May 31
    decision released July 23, 1991

      Judith Rossi, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Richard Palombo, assistant state’s attorney, for the appellant (state).

      Sigmund L. Miller, with whom was George P. DAmico, for the appellee (defendant).
   Glass, J.

In this certified appeal by the state from the judgment of the Appellate Court in State v. Durkin, 23 Conn. App. 642, 583 A.2d 1303 (1990), we consider whether a defendant can be found voluntarily to have waived the right of presence at an ongoing court proceeding upon a failure to appear in court without explanation other than the fact that, in the twenty-one day interim resulting from a continuance granted by the court at the defendant’s request, the defendant pleaded guilty and was sentenced and incarcerated on an unrelated charge in a foreign state. We conclude that out-of-state incarceration, alone, does not preclude a trial court from inferring such a defendant’s voluntary waiver from the totality of the circumstances. Accordingly, we reverse.

In January, 1989, following his conviction of the crime of possession of narcotics, the defendant, Timothy James Durkin, was sentenced to a term of five years imprisonment, execution suspended, with three years probation. The conditions of the defendant’s probation included the special condition that he remain “drug free,” and the standard condition that he obtain permission from his probation officer before leaving Connecticut. Despite his written acknowledgment that he understood these conditions, subsequent drug tests revealed that the defendant had used cocaine on four occasions between March and May, 1989. The defendant thereafter was arrested pursuant to General Statutes § 53a-32 and was charged with violating his probation by failing to remain “drug free.” The defendant pleaded not guilty to the charge and was released on a written promise to appear.

On September 20, 1989, the defendant appeared before the trial court for the commencement of his violation of probation hearing. After the state presented its entire case and rested, the defendant requested and was granted a continuance until October 11, 1989, on which date, defense counsel stated, the defense would present its case. At the October 11,1989 hearing, however, the defendant did not appear in court. Defense counsel explained that at some point between the hearings, the defendant had been sentenced and incarcerated on an unrelated charge in either North or South Carolina. While professing a lack of knowledge as to the precise circumstances prompting the defendant’s absence and incarceration, defense counsel indicated that he intended to assist the defendant in preparing a request to return voluntarily to Connecticut under the Interstate Agreement on Detainers (IAD); see General Statutes § 54-186; for the purpose of answering an unrelated felony charge then pending in Connecticut. Defense counsel then proposed that the revocation proceeding be continued until the defendant’s return. Expressing its belief that the IAD did not apply to the revocation proceeding because it already had commenced and thus was not a “pending” matter, the trial court ordered a continuance until October 18,1989, to permit the parties to research applicable law.

At the October 18,1989 hearing, the defendant again failed to appear in court. Defense counsel notified the trial court that the sentencing and incarceration of the defendant had occurred in South Carolina, and further indicated that he did not believe that the defendant had “intended when he went down to South Carolina to end up going to prison, and I don’t know exactly what did happen.” Finding the explanation provided for the defendant’s absence to be both unsubstantiated and insufficient, the trial court determined that his absence was a consequence of his voluntary act of leaving Connecticut “to meet whatever he felt to be his responsibilities” in South Carolina. The trial court then granted the state’s request to proceed in the defendant’s absence and found him in violation of the terms of his probation on the basis of the evidence introduced by the state. As a consequence, the trial court terminated the defendant’s probation, opened the original judgment, and reimposed the original sentence of five years imprisonment. The trial court nonetheless granted defense counsel’s request for a continuance until November 20, 1989, to obtain a certified copy of the defendant’s South Carolina conviction. Although refusing to vacate its orders, the trial court informed defense counsel that if, at the subsequent hearing, he “can persuade the court to modify [or] change . . . orders, fine. I have no problems with that.”

At the November 20,1989 hearing, defense counsel produced a certified copy of the South Carolina conviction indicating that on September 26,1986, less than one week after the commencement of the Connecticut revocation proceeding, the defendant had pleaded guilty to a South Carolina charge of possession of cocaine with intent to distribute, and that he had been sentenced to a term of five years imprisonment. The document also bore a South Carolina judge’s handwritten notation of the following “special condition”: “I would like this sentence to be concurrent with any revocation in Connecticut if possible.” Upon examination of the document, the trial court found that its contents lent additional support to its prior determination that the defendant had “acted on his own to leave the jurisdiction of this state, and do whatever he considered himself doing, and therefore his absence here was of his own volition.” The trial court further inferred from the presiding judge’s notation respecting a “revocation in Connecticut” that the defendant had “left this jurisdiction . . . knowing he had . . . the revocation of probation here. And, then told the authorities in the State of South Carolina about it—how else would they know.” Over defense counsel’s assertion that the defendant’s “involuntary” detention in South Carolina prohibited the court from acting in the defendant’s absence, the trial court terminated the proceeding, thus leaving its judgment revoking the defendant’s probation undisturbed.

The defendant appealed from the judgment of revocation of probation to the Appellate Court. Concluding that the trial court abused its discretion in finding that the defendant voluntarily had waived his right of presence at the revocation proceeding, the Appellate Court reversed the judgment. See State v. Durkin, supra. We granted the state’s petition for certification to appeal limited to the following question: “Did the Appellate Court correctly conclude that the trial court abused its discretion when it found that the defendant was voluntarily absent from his probation revocation hearing?” State v. Durkin, 217 Conn. 808, 584 A.2d 1192 (1991). We answer this question in the negative.

The due process clause of the fourteenth amendment to the United States constitution requires that certain minimum procedural safeguards be observed in the process of revoking the conditional liberty created by probation. Black v. Romano, 471 U.S. 606, 610, 105 S. Ct. 2254, 85 L. Ed. 2d 636 (1985); see Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). Among other things, due process entitles a probationer to a final revocation hearing under the conditions set forth in Morrissey v. Brewer, supra, which include an “opportunity to be heard in person and to present witnesses and documentary evidence . . . .” (Emphasis added.) Id.; see Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973); see also State v. Roberson, 165 Conn. 73, 81-82, 327 A.2d 556 (1973); State v. Crawford, 38 Conn. Sup. 472, 474-75, 451 A.2d 583 (1982); see generally General Statutes § 53a-32 (a). Since our courts are vested with the discretion to order a continuation of probation in lieu of a revocation; General Statutes § 53a-32 (b); see Practice Book § 943; a probationer must be afforded the opportunity at such a hearing to demonstrate “not only that he did not violate the conditions [of probation], but also that there was a justifiable excuse for any violation or that revocation is not the appropriate disposition.” Black v. Romano, supra, 612; see United States v. Brown, 899 F.2d 189, 194 (2d Cir. 1990). These procedural safeguards protect the probationer “against revocation of probation in a constitutionally unfair manner.” Black v. Romano, supra, 613.

Nonetheless, like the constitutional right of presence at a criminal trial, a probationer’s due process rights in a final revocation proceeding may knowingly and voluntarily be waived. See Sekou v. Warden, 216 Conn. 678, 694, 583 A.2d 1277 (1990); State v. Simino, 200 Conn. 113, 128-29, 509 A.2d 1039 (1986). Waiver need not be express, but rather, may be implied from the totality of the circumstances, including the probationer’s conduct. State v. Drakeford, 202 Conn. 75, 79, 519 A.2d 1194 (1987). If unaccompanied by a justification in the nature of “ ‘good cause’ ”; State v. Gonzalez, 205 Conn. 673, 688, 535 A.2d 345 (1987); see United States v. Sanchez, 790 F.2d 245, 249 (2d Cir.), cert. denied, 479 U.S. 989, 107 S. Ct. 584, 93 L. Ed. 2d 587 (1986); a probationer’s voluntary absence from a known, ongoing revocation proceeding “ ‘operates as a waiver’ ” of his rights therein, and “ ‘leaves the court free to proceed ... in a like manner and with like effect as if he were present.’ ” Taylor v. United States, 414 U.S. 17, 19, 94 S. Ct. 194, 38 L. Ed. 2d 174 (1973); see Practice Book § 968; cf. Taitón v. Warden, 171 Conn. 378, 386, 370 A.2d 965 (1976). A trial court’s determination of waiver will not be disturbed except for an abuse of discretion. State v. Simino, supra, 132; see Talton v. Warden, supra.

In concluding that the trial court abused its discretion in determining that the defendant voluntarily had waived his due process right of presence at the revocation proceeding, the Appellate Court viewed certain dictum in Diaz v. United States, 223 U.S. 442, 32 S. Ct. 250, 56 L. Ed. 500 (1912), as answering “in the negative” the question “whether a defendant in custody in another state can be deemed to have waived his right to be present.” State v. Durkin, supra, 23 Conn. App. 649. The Appellate Court also drew support from United States v. Fontanez, 878 F.2d 33 (2d Cir. 1989), and United States v. Crutcher, 405 F.2d 239 (2d Cir. 1968), cert. denied, 394 U.S. 908, 89 S. Ct. 1018, 22 L. Ed. 2d 219 (1969), which, in the Appellate Court’s view, stood for the proposition that voluntary waiver cannot be inferred “when a defendant was absent due to a subsequent arrest on an unrelated matter.” State v. Durkin, supra, 23 Conn. App. 649. On the basis of these precedents, the Appellate Court determined that the defendant had satisfied his burden to justify his absence from the known revocation proceeding when the “defendant’s counsel offered the fact that his client was incarcerated in another state.” Id., 650. Finding the record “ ‘silent’ ” but for that fact, the Appellate Court held that “the trial court was incorrect in finding that the defendant voluntarily waived his right to be present at the violation of probation hearing.” Id.

The state attacks the Appellate Court’s focus on the defendant’s incarceration to the exclusion of the totality of the circumstances from which, the state contends, the trial court reasonably inferred the defendant’s voluntary waiver. According to the state, the circumstances supporting the trial court’s determination include defense counsel’s representation that the defendant “went down” to South Carolina despite his knowledge of the date, time and place that the revocation hearing had been scheduled to continue, the undisputed fact that the defendant’s departure from this state was unauthorized by his probation officer in contravention of a standard condition of his probation, and the lack of evidence demonstrating that either the defendant’s initial absence or his subsequent incarceration was officially compelled or otherwise involuntary. The state argues that because it was the defendant’s burden to justify his absence, the Appellate Court should not have construed any silence in the record in his favor. We agree.

In Diaz v. United States, supra, 455, the United States Supreme Court commented, in dicta, that courts “have regarded an accused who is in custody ... as incapable of waiving the right” of presence. The court’s underlying rationale was that when in custody, a defendant’s “presence or absence is not within his own control . . . .” Id. While the fact of a defendant’s custody undoubtedly supplies a sufficient predicate for an Inference of involuntary absence in accordance with the Diaz rationale, we do not read Diaz as mandating such an inference where the surrounding circumstances not only suggest the inapplicability of that rationale, but also support a reasonable inference to the contrary. “The issue of voluntariness is a question of fact which should not be resolved by per se formulations.” People v. Epps, 37 N.Y.2d 343, 350, 334 N.E.2d 556, 372 N.Y.S.2d 606, cert. denied, 423 U.S. 999, 96 S. Ct. 430, 46 L. Ed. 2d 374 (1975); see United States v. Fontanez, supra, 36.

Furthermore, “[wjhatever force was once exerted by the dictum that a defendant in custody does not have the power to waive his right to be present at his trial, see Diaz v. United States, [supra]; United States v. Crutcher, supra . . . 243, has been diminished by Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970), which held that a defendant who persistently behaves disraptively at his trial may lose his right to be present.” Wilson v. Harris, 595 F.2d 101, 104 n.3 (2d Cir. 1979). A defendant in custody who deliberately elects to remain in a jail cell despite the extension of a known opportunity to attend trial likewise may effectively waive the right of presence. Id.; see People v. Epps, supra; see also Broecker v. State, 168 Ind. App. 231, 237, 342 N.E.2d 886 (1976); State v. Kasper, 152 Vt. 435, 440, 566 A.2d 982 (1989); cf. Sekou v. Warden, supra, 698. Where, as in these situations, the circumstances give rise to a reasonable inference that a defendant’s presence or absence at a known proceeding was “within his [or her] own control”; Diaz v. United States, supra; a trial court is not precluded from inferring that despite the fact of custody, the defendant waived the right of presence voluntarily.

Considering the totality of the circumstances before the trial court in this case, we cannot agree with the Appellate Court’s conclusion that the trial court abused its discretion in determining that the defendant voluntarily had waived his due process rights in the revocation proceeding. The defendant, at liberty on a written promise to appear, was obliged to attend the revocation proceeding on the date that he knew it had been scheduled to continue. United States v. Tortora, 464 F.2d 1202, 1208 (2d Cir.), cert. denied sub nom. Santoro v. United States, 409 U.S. 1063, 93 S. Ct. 554, 34 L. Ed. 2d 516 (1972). The only proffered explanation for his failure to do so was that he “went down” to South Carolina to tend to a criminal matter, an act that ultimately led to his guilty plea, conviction and incarceration there. Because the defendant was bound by the standard condition of his probation to obtain permission before leaving Connecticut, his unauthorized departure alone evinced a defiance of the laws of this state and a disregard for his responsibilities here. Even after indicating that he had spoken to the defendant’s South Carolina attorney, defense counsel never suggested to the court that either the defendant’s departure or his apparent election to submit to the South Carolina authorities rather than the jurisdiction of a Connecticut court was the product of “official connivance or obstruction”; People v. Epps, supra; or otherwise resulted from anything but the defendant’s free, uncompelled choice. Compare United States v. Fontanez, supra, 36 (defendant’s absence “a direct result of being taken into police custody in connection with a crime unrelated to trial [emphasis added]); United States v. Crutcher, supra, 242 (defendant “arrested by State authorities ... on charges unrelated to this proceeding”).

Finally, the trial court was not required to afford the defendant the benefit of his failure to provide an adequate explanation for his absence. The defendant’s absence from the known revocation proceeding cast the burden on him to demonstrate that his absence was in some fashion justified by “good cause.” State v. Simino, supra; see United States v. Sanchez, supra, 249. In view of the defendant’s failure to do so, and in light of the totality of the circumstances before the trial court, we conclude that the Appellate Court improperly determined that the trial court abused its discretion in finding that the defendant voluntarily had waived his due process rights in the probation revocation proceeding.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-32. violation of probation OR CONDITIONAL discharge: arrest; procedure, (a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge, or may issue a notice to appear to answer to a charge of such violation, which notice shall be personally served upon the defendant. Any such warrant shall authorize all officers named therein to return the defendant to the custody of the court or to any suitable detention facility designated by the court. Any probation officer may arrest any defendant on probation without a warrant or may deputize any other officer with power to arrest to do so by giving him a written statement setting forth that the defendant has, in the judgment of the probation officer, violated the conditions of his probation. Such written statement, delivered with the defendant by the arresting officer to the official in charge of any correctional center or other place of detention, shall be sufficient warrant for the detention of the defendant. After making such an arrest, such probation officer shall present to the detaining authorities a similar statement of the circumstances of violation. Provisions regarding release on bail of persons charged with a crime shall be applicable to any defendant arrested under the provisions of this section. Upon such arrest and detention, the probation officer shall immediately so notify the court or any judge thereof. Thereupon, or upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation or conditional discharge, shall be advised by the court that he has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in his own behalf.
      “(b) If such violation is established, the court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by reliable and probative evidence.”

       Defense counsel later informed the court that he had intended to call the defendant as a witness at the October 11, 1989 hearing.

       There is no indication in the record that defense counsel ever assisted the defendant in filing a request to return voluntarily to Connecticut under the IAD, nor is there any indication that the defendant otherwise filed such a request. Unless the defendant initiated a proceeding under the IAD to return to Connecticut for the disposition of other criminal charges, the probation violation proceeding could not have been completed until the defendant had served his South Carolina sentence. The IAD is not available for probation violation charges. “[T]he phrase ‘untried indictment, information or complaint’ in Art. Ill [of the IAD] refers to criminal charges pending against a prisoner. A probation-violation charge, which does not accuse an individual with having committed a criminal offense in the sense of initiating a prosecution, thus does not come within the terms of Art. III.” Carchman v. Nash, 473 U.S. 716, 725, 105 S. Ct. 3401, 87 L. Ed. 2d 516 (1985).

       The defendant does not now claim that he had been unaware of the date, time or place that the revocation proceeding had been scheduled to continue.

       The court also declined to rule on the defendant’s oral motions for a mistrial, to revoke the orders previously entered, and to reopen the judgment.

       See footnote 1, supra.

       See footnote 1, supra.

       ‘ ‘Although a [probation] revocation proceeding must comport with the requirements of due process, it is not a criminal proceeding.” Minnesota v. Murphy, 465 U.S. 420, 435 n.7,104 S. Ct. 1136, 79 L. Ed. 2d 409, reh. denied, 466 U.S. 945, 104 S. Ct. 1932, 80 L. Ed. 2d 477 (1984).

       Before the Appellate Court and this court, defense counsel attempted to explain the defendant’s absence from the revocation proceeding by representing that “the defendant had been presented, the day he appeared in South Carolina, with the choice of pleading guilty and accepting a five year sentence or facing trial and a much longer term.” State v. Durkin, 23 Conn. App. 642, 650-51 n.4, 583 A.2d 1303 (1990). Defense counsel did not, however, make any such representation to the trial court at the time of its determination of waiver. Because a reviewing court’s assessment of a trial court’s determination of waiver cannot be based on hindsight, but must be confined to the trial court record and the circumstances confronting the trial court at the time of its determination; cf. United States v. Sanchez, 790 F.2d 245, 251 (2d Cir.), cert. denied, 479 U.S. 989, 107 S. Ct. 584, 93 L. Ed. 2d 587 (1986); we decline to consider whether our conclusion would be different if defense counsel had made the above representation to the trial court.

       We decline the defendant’s invitation to uphold the Appellate Court’s decision on the ground that its proper application of the “balancing” test enunciated in United States v. Tortora, 464 F.2d 1202, 1210 (2d Cir.), cert. denied sub nom. Santoro v. United States, 409 U.S. 1063, 93 S. Ct. 554, 34 L. Ed. 2d 516 (1972), demonstrated that the defendant’s due process rights outweighed the state’s interest in proceeding in his absence. See State v. Durkin, 23 Conn. App. 642, 651-52, 583 A.2d 1303 (1990). Like courts in other jurisdictions; see State v. Hudson, 119 N.J. 165,183-84, 574A.2d 434 (1990); we previously have declined an invitation to adopt the Tortora test in this state. See State v. Drakeford, 202 Conn. 75, 80, 519 A.2d 1194 (1987). The defendant has offered no persuasive reason why the test should be embraced now.


author: Per Curiam.

text:
    Gloria Cook, Conservatrix (Estate of Dorinda Leonard) v. James F. Turner et al.
    (14254)
    Peters, C. J., Shea, Callahan, Glass and Borden, Js.

      Argued May 29
    decision released July 23, 1991

      Mark D. Malley, with whom were Richard D. Gilland, Jr., and, on the brief, RichardD. Gilland, for the appellant (plaintiff).

      James E. Kernan, with whom was Allisan Lee Adams, for the appellee (defendant town of Litchfield).
   Per Curiam.

In this action the plaintiff, Gloria Cook, conservatrix of Dorinda Leonard, sought damages from the defendant town of Litchfield for personal injuries sustained by Leonard on October 3, 1986, when the vehicle she was driving went off a town road and struck a telephone pole. The complaint, as amended, alleged that the town had resurfaced and oiled the road a short time before the accident in such a manner as to create an extremely slippery and dangerous surface, which constituted a nuisance and had caused the vehicle operated by Leonard to go out of control. The town filed a motion to strike, which the trial court granted on the ground that General Statutes § 52-557n bars any action for injury to person or property caused by a defective road unless it is brought pursuant to General Statutes § 13a-149. That section imposes liability on a town for damages caused by means of a defective road or bridge when the town was “bound to keep it in repair.” After the plaintiff had failed to amend her complaint, the court rendered a final judgment for the town. See Practice Book § 157.

In her appeal from the judgment, the plaintiff raises only a single issue, whether § 52-557n eliminates the common law action for an absolute nuisance created by positive acts of a municipality upon a public highway and makes § 13a-149 the exclusive remedy against a municipality for any injury caused by a defective highway. Having concluded recently in Sanzone v. Board of Police Commissioners, 219 Conn. 179, 592 A.2d 912 (1991), that § 52-557n bars any action based upon a defective highway that has not been brought pursuant to § 13a-149, we hold that a common law action for nuisance is barred by § 52-557n and affirm the judgment striking the complaint.

In Sanzone we held that the proviso in § 52-557n (a) (1) that “no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149” applied to “the entire content of subdivision § 52-557n (a) (1), not merely subdivision (a) (1) (C),” to which its application was clearest. (Emphasis added.) Id., 190. Subdivision (a) (1) (C) of § 52-557n relates expressly to a common law nuisance action against a municipality: “acts of the political subdivision which constitute the creation or participation in the creation of a nuisance.” The complaint in this case alleges precisely such an action based on the slippery condition caused by resurfacing the road. If the proviso restricting highway defect claimants to the remedy provided by § 13a-149 is to have any application whatsoever, it must be deemed to apply to the nuisance action pleaded by this plaintiff.

In Sanzone we also considered the effect of the savings clause, “[ejxcept as otherwise provided by law,” with which § 52-557n (a) (1) begins. The plaintiff relies primarily on this clause in arguing that common law nuisance actions are not affected by the statute. We concluded in Sanzone that this provision was not intended “to preserve without modification all existing law, common and statutory, including such actions for positive nuisance,” (emphasis in original) because “[t]he legislature could not have intended the general language of the introductory clause to swallow up and nullify the section’s other provisions.” Id., 191. We held that the meaning of the word “law” in the savings clause must be limited to state and federal statutes and did not include the common law. Id., 191-92.

The judgment is affirmed.

       The original complaint alleged negligence against James F. Turner, the owner of the vehicle that Dorinda Leonard had been driving, and also against the town of Litchfield. At the time the motion to strike was granted, the complaint had been amended to remove the allegations of negligence against Turner, although he was referred to as a “defendant” and the file does not contain a withdrawal of the action against him. The original allegations of negligence against the town of Litchfield had also been converted to allegations of nuisance based upon the facts set forth in the original complaint.


author: Borden, J.

text:
    Marion Lees v. Middlesex Insurance Company
    (14153)
    Peters, C. J., Shea, Callahan, Borden and F. X. Hennessy, Js.

      Argued April 30
    decision released July 23, 1991

      John T. Bochanis, with whom, on the brief, was Thomas J. Weihing, for the appellant (plaintiff).

      John B. Farley, with whom, on the brief, were John W. Lemega and Daniel P. Scapellati, for the appellee (defendant).
   Borden, J.

The certified issue in this appeal is whether the Appellate Court correctly concluded that the claims of the plaintiff, Marion Lees, under the Connecticut Unfair Insurance Practices Act (CUIPA); General Statutes (Rev. to 1981) § 38-60 et seq.; and the Connecticut Unfair Trade Practices Act (CUTPA); General Statutes § 42-110a et seq.; are barred by the one year limit of General Statutes (Rev. to 1981) § 38-98 for a suit on a fire insurance policy. We conclude that the plaintiffs claims are not barred and accordingly reverse the decision of the Appellate Court.

The plaintiff brought this action against the defendant, Middlesex Insurance Company, for alleged violations of CUIPA and CUTPA and for breach of contract. The defendant moved to strike the plaintiffs CUIPA and CUTPA claims. The trial court, Berdon, J., denied the motion. The defendant next moved for summary judgment alleging that the plaintiffs suit was barred by the one year suit limitation provision in the insurance contract. The trial court, Thompson, J., granted the defendant’s motion for summary judgment. The plaintiff appealed to the Appellate Court, which affirmed the trial court decision. Lees v. Middlesex Ins. Co., 23 Conn. App. 814, 581 A.2d 287 (1990). We granted the plaintiff’s petition for certification to appeal limited to the above stated issue.

The trial court found the following facts for purposes of the summary judgment. On May 9, 1982, a fire destroyed the home of the plaintiff. At the time of the loss, the plaintiff’s home was insured by the defendant. On August 9, 1982, the plaintiff filed two proof of loss statements with the defendant, one for loss of the dwelling and the other for loss of the contents of the dwelling. By letter dated August 16, 1982, the defendant rejected both proofs of loss as being “excessive and premature.” On November 1, 1982, the defendant paid the plaintiff’s claim for loss of the dwelling but, without explanation, made no payment on the claim for loss of the contents. There was no further communication between the parties until August 23, 1983, when the plaintiff made a written inquiry requesting an explanation for the denial of her loss of contents claim.

On August 16,1985, the plaintiff instituted this suit by way of a three count complaint alleging that the defendant had: (1) breached the insurance contract; (2) engaged in unfair insurance practices in violation of CUIPA; see footnote 1, supra; and (3) engaged in unfair trade practices in violation of CUTPA. See footnote 2, supra. The defendant moved for summary judgment alleging that the one year suit limitation provision in the insurance contract barred the plaintiffs suit.

The trial court rendered summary judgment in favor of the defendant on all three counts. With respect to the second and third counts, the court held that “since the CUIPA and CUTPA claims necessarily arise from the relationship between the parties created by the insurance contract, they, too, are subject to the policy provision requiring the institution of suit within one year [as a matter of law].” The Appellate Court affirmed the judgment of the trial court. Lees v. Middlesex Ins. Co., supra.

The plaintiff claims that the trial court was incorrect as a matter of law in granting summary judgment on the second and third counts because the CUIPA and CUTPA claims alleged in those counts are not actions “on this policy” but are independent statutory tort actions and, therefore, the one year suit limitation provision in § 38-98 does not apply. The defendant claims that: (1) the trial court was correct in granting summary judgment because all claims by an insured against an insurer, regardless of their nature, are governed by the one year suit limitation provision of § 38-98; and (2) even if the plaintiffs CUIPA and CUTPA claims are not governed by the one year suit limitation of § 38-98, that limitation nevertheless controls unless the plaintiff has advanced a viable CUIPA or CUTPA claim. We agree with the plaintiff that her CUIPA and CUTPA claims are not subject to the one year suit limitation of § 38-98.

I

The standard for appellate review of a trial court’s decision to grant a motion for summary judgment is well established. “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.’ ” Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 402, 528 A.2d 805 (1987); see also Gurliacci v. Mayer, 218 Conn. 531, 562, 590 A.2d 914 (1991). The issue, therefore, is whether the Appellate Court properly determined that judgment for the defendant was required as a matter of law because the plaintiff’s CUIPA and CUTPA claims were barred by the one year suit limitation of § 38-98 for a suit on the policy.

Construction of a statute is a question of law for the court. Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986). In every case involving the construction of a statute, our starting point must be the language employed by the legislature. King v. Board of Education, 203 Conn. 324, 332, 524 A.2d 1131 (1987). Section 38-98 requires the standard fire insurance policy form to contain the following provision: “No suit or action on this policy for the recovery of any claim shall be sustainable . . . unless commenced within twelve months next after inception of the loss.” (Emphasis added.) To determine whether the plaintiff’s CUIPA and CUTPA claims are governed by the one year limitation of § 38-98, we must first determine if the plaintiffs CUIPA and CUTPA claims are actions “on this policy” as required by the statute. We conclude that they are not.

The plaintiff claims that her CUIPA and CUTPA claims are not actions “on [the] policy.” The plaintiff contends that if § 38-98 were interpreted to include all suits against the insurer, the words “on this policy” would be superfluous. By contrast, the defendant’s claim is essentially that § 38-98 should be interpreted to provide that any cause of action brought by an insured against her insurer is governed by the one year suit limitation in the statute. In support of its claim, the defendant relies on a line of cases that have held that any form of action, including tort actions, growing out of the contractual relationship, constitutes an action on the policy and, therefore, is governed by the limitation provision in the insurance contract. See Barrow Development Co. v. Fulton Ins. Co., 418 F.2d 316 (9th Cir. 1969); Hawley Enterprises, Inc. v. Reliance Ins. Co., 621 F. Sup. 190 (D. Conn. 1985); Zieba v. Middlesex Mutual Assurance Co., 549 F. Sup. 1318 (D. Conn. 1982); Modern Carpet Industries, Inc. v. Factory Ins. Assn., 125 Ga. App. 150, 186 S.E.2d 586 (1971); Zehner v. MFA Ins. Co., 451 N.E.2d 65 (Ind. App. 1983).

In the construction of a statute, no word should be treated as superfluous or insignificant. O’Brien Properties, Inc. v. Rodriguez, 215 Conn. 367, 372-73, 576 A.2d 469 (1990). The statute states only that an action “on this policy” must be brought within one year. The defendant’s interpretation of the statute, however, would in effect broaden the language to provide that any suit or action against an insurer must be brought within one year. Such an interpretation would render the words “on this policy” superfluous because all actions between the respective parties, whether “on [the] policy” or not, would be subject to the one year limitation provision. Had the legislature intended all actions between an insurer and an insured to be subject to the one year provision it could have explicitly so provided. We ordinarily decline to read into statutes provisions not clearly stated; Local 218 Steam Fitters Welfare Fund v. Cobra Pipe Supply & Coil Co., 207 Conn. 639, 645, 541 A.2d 869 (1988); and we see no compelling reason to do so in this case.

Furthermore, the phrase “on this policy” strongly suggests that it was not intended to encompass CUIPA and CUTPA claims because that phrase and those claims ordinarily involve different factual inquiries, and because the duties ordinarily associated with them derive from different sources. In an action on an insurance policy, the conduct giving rise to the insurer’s liability is a failure to pay out the policy proceeds when the insurer is contractually bound to do so. The factual inquiry focuses on the nature of the loss, the coverage of the policy and whether the parties have complied with all of the terms of the policy. In a CUIPA and CUTPA claim, however, the insurer’s liability is ordinarily based on its conduct in settling or failing to settle the insured’s claim and on its claims settlement policies in general. The factual inquiry focuses, not on the nature of the loss and the terms of the insurance contract, but on the conduct of the insurer. Furthermore, in an action “on [the] policy,” the insurer’s duty to comply with the policy provisions stems from the private insurance agreement and is contractual in nature. In a CUIPA and CUTPA claim, the insurer’s duty stems not from the private insurance agreement but from a duty imposed by statute.

We note further that General Statutes § 42-110g (f) provides for a three year statute of limitations for bringing a CUTPA claim. If we were to adopt the defendant’s position that a CUTPA claim is governed by the one year provision in § 38-98, it would render the statute of limitations prescribed in § 42-110g (f) meaningless, as applied to claims based upon improper practices of insurers. We presume, however, that the legislature intended §§ 38-98 and 42-110g (f) to be harmonious with each other and we therefore “ ‘construe each to leave room for meaningful operation of the other.’ ” Milford v. Local 1566, 200 Conn. 91, 100, 510 A.2d 177 (1986). Thus, we interpret the statute of limitations in § 42-110g (f) to operate independently of that prescribed in § 38-98.

Furthermore, although the legislature has not expressly provided a specific statute of limitation provision for CUIPA claims, it would be anomalous to apply the § 38-98 limitations period to CUIPA claims since we have held that a private cause of action exists under CUTPA to enforce alleged CUIPA violations. Mead v. Bums, 199 Conn. 651, 665-66, 509 A.2d 11 (1986). This linkage counsels strongly against reading a CUIPA claim as an action “on [the] policy” under § 38-98.

Finally, pursuant to § 42-110g (a) and (d) the court may award punitive damages and reasonable attorneys’ fees for a violation of CUTPA. These are damages that could be awarded even if the plaintiff’s principal damages were proven to be only the amount of her loss covered by the policy. This further supports the conclusion that a CUTPA violation gives rise to a separate cause of action and is not governed by the limitations period provided in § 38-98.

Our conclusion is not inconsistent with Hanover Ins. Co. v. Fireman’s Fund Ins. Co., 217 Conn. 340, 354-55, 586 A.2d 567 (1991), in which we recently addressed the argument that an insurer’s equitable claim to contribution was not one that rested “on the policy.” In that case, two insurance companies had provided fire insurance coverage to the insured. When the insured’s place of business was damaged in a fire, one insurance company paid the entire claim while the remaining company refused to pay. The company that paid the claim eventually brought a subrogation action against the nonpaying company, in which it sought reimbursement of one half of the amount it had paid to the insured. Because that action had been brought more than one year after the fire loss, we held that it was barred by § 38-98.

The insurer seeking reimbursement argued, however, that it had an independent, equitable right to contribution that did not rest “on [the] policy” and, therefore, was not barred by § 38-98. Without deciding that question, we noted “that the policy of swift settlement of claims promoted by the one year suit provision in § 38-98 would be undermined if insurers who failed to bring a timely subrogation claim could simply bypass the one year suit requirement ... by also alleging an independent contribution claim . . . .” Hanover Ins. Co. v. Fireman’s Fund Ins. Co., supra, 355.

Our discussion in Hanover Ins. Co. rested on the understanding that in nearly every circumstance where an insurer had a subrogation claim against another insurer, it could also assert a parallel right to contribution. CUTPA and CUIPA claims, however, do not pose the same problem. Such claims, as we noted earlier, generally involve different factual inquiries than do breach of contract claims. Thus, there is a substantially reduced likelihood that a party asserting an untimely breach of contract claim would readily be able to circumvent the one year suit provision by alleging a CUTPA or CUIPA claim.

II

The defendant next claims that even if CUIPA and CUTPA claims are not actions on the policy, we should adopt the position that the one year suit limitation provision controls unless the insured has advanced a viable CUIPA and CUTPA claim. The defendant argues that if the plaintiffs CUIPA and CUTPA claims are essentially a pretextual attempt to recover the policy proceeds, the claims should be governed by the one year suit limitation provision. The defendant asserts that this rule applies here because the plaintiff has not alleged any misconduct on the defendant’s part after the loss other than those acts relating to the denial of the claim. We reject this view.

The trial court, by denying the defendant’s motion to strike the plaintiff’s CUIPA and CUTPA claims, determined that the plaintiff had alleged valid CUIPA and CUTPA violations. If the plaintiff ultimately prevails on her CUIPA or CUTPA claim, the defendant may then appeal and secure appellate review of the trial court’s decision on the motion to strike. If the plaintiff proves that the defendant’s conduct violated CUIPA, CUTPA, or both, we see no reason to deny relief simply because § 38-98 would bar an action on the insurance policy. To accept the defendant’s argument would be inconsistent with the recognition of CUIPA and CUTPA claims as independent actions based on factual inquiries and sources of duty separate from actions on the policy.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other justices concurred.

       “[General Statutes (Rev. to 1981)] Sec. 38-60. unfair practice prohibited. No person shall engage in this state in any trade practice which is defined in section 38-61 as, or determined pursuant to sections 38-62 and 38-63 to be, an unfair method of competition or an unfair or deceptive act or practice in the business of insurance, nor shall any domestic insurance company engage outside of this state in any act or practice defined in subsections (1) to (12), inclusive, of section 38-61. The commissioner shall have power to examine the affairs of every person engaged in the business of insurance in this state in order to determine whether such person has been or is engaged in any unfair method of competition or in any unfair or deceptive act or practice prohibited by sections 38-60 to 38-64, inclusive. When used in said sections, ‘person’ means any individual, corporation, association, partnership, reciprocal exchange, interinsurer, Lloyd’s insurer, fraternal benefit society, and any other legal entity engaged in the business of insurance, including agents, brokers and adjusters.”
      Section 38-60 has been renumbered] effective January, 1991, and now is found at General Statutes § 38a-815.
      General Statutes (Rev. to 1981) § 38-61 provides in relevant parts: “The following are defined as unfair methods of competition and unfair and deceptive acts or practices in the business of insurance . . .
      “(6) Unfair claim settlement practices. Committing or performing with such frequency as to indicate a general business practice any of the following . . . (b) failing to acknowledge and act with reasonable promptness upon communications with respect to claims arising under insurance policies . . . (e) failing to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed . . . (f) not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear . . . (n) failing to promptly provide a reasonable explanation of the basis in the insurance policy in relation to the facts or applicable law for denial of a claim or for the offer of a compromise settlement . . . .”
      Section 38-61 has been renumbered, effective January, 1991, and now is found at General Statutes § 38a-816.

       “[General Statutes] Sec. 42-110b. unfairtrade practices prohibited, legislative intent, (a) No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.

        “(b) It is the intent of the legislature that in construing subsection (a) of this section, the commissioner and the courts of this state shall be guided by interpretations given by the Federal Trade Commission and the federal courts to Section 5 (a) (1) of the Federal Trade Commission Act [15 U.S.C. § 45 (a) (1)], as from time to time amended.
      “(c) The Commissioner may, in accordance with chapter 54, establish by regulation acts, practices or methods which shall be deemed to be unfair or deceptive in violation of subsection (a) of this section. Such regulations shall not be inconsistent with the rules, regulations and decisions of the federal trade commission and the federal courts in interpreting the provisions of the Federal Trade Commission Act.
      “(d) It is the intention of the legislature that this chapter be remedial and be so construed.”

       General Statutes (Rev. to 1981) § 38-98 provides in relevant part: “The standard form of fire insurance policy of the state of Connecticut . . . shall be as follows . . .
      “Suit. No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss.”
      Section 38-98 has been renumbered, effective January, 1991, and now is found at General Statutes § 38a-307.

       The defendant moved for special permission, pursuant to Practice Book § 4140, for this court to review the trial court’s decision on the motion to strike. We denied the motion. See footnote 13, infra.

       The insurance policy one year suit limitation provision provides: “Suits Against Us. No action shall be brought unless there has been compliance with the policy provisions and the action is started within one year after the occurrence causing loss or damage.”

        The one year suit limitation provision is statutorily required to be incorporated into every fire insurance policy. See General Statutes (Rev. to 1981) § 38-99; see also State v. Biller, 190 Conn. 594, 611, 462 A.2d 987 (1983). The language in the insurance policy’s one year limitation is not identical to that of General Statutes (Rev. to 1981) § 38-98. See footnote 3, supra. The words “on this policy” are not included in the insurance policy provision. When a private contract of insurance conflicts with a statute, however, it must give way to the latter. Nationwide Ins. Co. v. Gode, 187 Conn. 386, 399, 446 A.2d 1059 (1982). Therefore, we focus on the language contained in the statutory suit limitation of § 38-98.

       Concerning the plaintiffs breach of contract count, the trial court held that the defendant was not estopped from asserting the one year limitation provision as a defense and, therefore, dismissed the breach of contract claim as being barred by that provision. The Appellate Court affirmed. On appeal, the plaintiff does not dispute the conclusion that her breach of contract claim is barred by General Statutes (Rev. to 1981) § 38-98.

       The plaintiff and the defendant note in their briefs that there is a split of authority with respect to whether an action brought by an insured against the insurer alleging a common law tort, such as negligence, fraud or bad faith, is governed by the limitation provision in the insurance policy for actions on the policy or by a tort statute of limitations. Compare Hearn v. Rickenbacker, 428 Mich. 32, 400 N.W.2d 90 (1987) (plaintiffs fraud claim against insurer not action on policy and, therefore, not governed by one year limitation in insurance policy); Plant v. Illinois Employers Ins. of Wausau, 20 Ohio App. 3d 236, 485 N.E.2d 773 (1984) (plaintiffs bad faith claim against insurer based on duty imposed by law, not contract and not governed by one year suit limitation in insurance policy); Lewis v. Farmers Ins. Co., 681 P.2d 67 (Okla. 1983) (plaintiff’s bad faith claim governed by tort statute of limitations); Warmka v. Hartland Cicero Mutual Ins. Co., 136 Wis. 2d 31, 400 N.W.2d 923 (1987) (plaintiff’s bad faith claim based on tort and governed by tort statute of limitations); with Barrow Development Co. v. Fulton Ins. Co., 418 F.2d 316 (9th Cir. 1969) (negligence claim against insurer governed by one year suit limitation in policy); Modern Carpet Industries, Inc. v. Factory Ins. Assn., 125 Ga. App. 150, 186 S.E.2d 586 (1971) (regardless of form of action, if source of right claimed has evolved from insurance policy, one year limitation in policy applies); Zehner v. MFA Ins. Co., 451 N.E.2d 65 (Ind. App. 1983) (plaintiff’s tort action against insurer governed by one year limitation in the policy).

       In support of its claim, the defendant places special emphasis upon two decisions of the United States District Court for the District of Connecticut. Hawley Enterprises, Inc. v. Reliance Ins. Co., 621 F. Sup. 190 (D. Conn. 1985) (plaintiff’s CUIPA claim barred by one year limitation in policy); Zieba v. Middlesex Mutual Assurance Co., 549 F. Sup. 1318 (D. Conn. 1982) (alleged tortious conduct of insurer arises out of its obligations under contract and, therefore, plaintiff’s bad faith claim governed by one year limitation in insurance policy). We note, however, that we need not defer to the District Court’s decisions on issues of Connecticut law. Rego v. Connecticut Ins. Placement Facility, 219 Conn. 339, 350, 593 A.2d 491 (1991).

       General Statutes § 42-1 lOg (f) provides: “An action under this section may not be brought more than three years after the occurrence of a violation of this chapter.”

       General Statutes § 42-110g (a) and (d) provide in pertinent part: “action foe damages, class actions, costs and fees, equitable belief, (a) . . . . The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper. . . .
      “(d) In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys’ fees based on the work reasonably performed by an attorney and not on the amount of recovery. . . .”

       This view has been adopted by at least one California appellate court. See Abari v. State Farm & Casualty Co., 205 Cal. App. 3d 530, 252 Cal. Rptr. 565 (2d Dist. 1988) (plaintiff’s bad faith and unfair practice claims barred by one year suit limitation for actions on policy because they are a “transparent attempt to recover on the policy”); Lawrence v. Western Mutual Ins. Co., 204 Cal. App. 3d 565, 251 Cal. Rptr. 319 (2d Dist. 1988) (if allegation of tortious bad faith relates to claim on underlying policy rather than to conduct or event subsequent to loss, action is on the policy).

       Contrary to the defendant’s assertion, however, the plaintiff has alleged acts of misconduct by the defendant occurring after the loss that are unrelated to the policy proceeds. Specifically, the plaintiff has alleged that the defendant failed to deny or confirm coverage of her claim within a reasonable time after the proof of loss statements were completed in violation of General Statutes (Rev. to 1981) § 38-61 (6) (e). The plaintiff has also alleged that the defendant failed to provide any explanation as to why the defendant denied the plaintiff’s claim in violation of § 38-61 (6) (n).

       The defendant attempts to raise an alternative ground on which to affirm the Appellate Court’s decision. It claims that, because the trial court determined that the plaintiff was unable to establish the existence of an issue of material fact with respect to a claim of estoppel that the plaintiff raised in response to the motion for summary judgment, the plaintiff likewise has failed to establish the existence of an issue of material fact with respect to her CUIPA and CUTPA claims. We decline to consider this claim.
      The defendant is essentially asking us to determine whether the plaintiff has alleged valid CUIPA and CUTPA claims. As previously noted; see footnote 4, supra; we declined to consider in this appeal whether the trial court was correct in concluding that the plaintiff’s CUIPA and CUTPA counts alleged valid causes of action.