author: KATZ, J.

text:
    BARBARA L. RANA v. FRANK RITACCO
    (15214)
    Peters, C. J., and Borden, Norcott, Katz and Palmer, Js.

      Argued January 11
    decision released March 19, 1996

      Dennis A. Ferdon, with whom were Christopher P. Anderson and, on the brief, Kerin M. Woods, for the appellant (plaintiff).

      James L. Sullivan, for the appellee (Whittaker Corporation).

      Steven D. Ecker and Joram Flirsch filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.
   KATZ, J.

The dispositive issue in this certified appeal is whether the plaintiffs notice to her employer, Whittaker Corporation (Whittaker), of a third party action complied with General Statutes § 31-293 (a). We conclude that the notice fulfilled the requirements of § 31-293 (a), and that therefore Whittaker’s failure to intervene timely in the action caused its right of action against the third party tortfeasor to abate.

The material facts are not disputed. On January 23, 1989, while acting in the course of her employment as director of procurements with Whittaker, the plaintiff, Barbara L. Rana, sustained various injuries when she slipped and fell while walking down a hallway leading into her office. As a result of those injuries, she properly received workers’ compensation benefits from Whittaker. See General Statutes § 31-275 et seq.

Thereafter, the plaintiff initiated a third party action against the defendant, Frank Ritacco, owner of Ocean State Cleaning, who had contracted with Whittaker for maintenance services. The plaintiffs complaint alleged that the defendant had been negligent in allowing a slippery wax to remain on the floor and in failing to warn the plaintiff of the dangerous condition. On December 20, 1990, the writ, summons and complaint were given to a sheriff, who served them on the defendant on December 27, 1990. Although the return date on the writ was January 22, 1991, it was actually returned to the Superior Court in the judicial district of New London at Norwich on January 4, 1991, and was assigned a docket number on January 7, 1991.

In order to notify Whittaker of the third party action pursuant to § 31-293 (a), the plaintiff mailed to it a certified letter dated December 20, 1990, along with a copy of the writ, summons and complaint. This notice was acknowledged by Whittaker as having been received on January 7, 1991. Approximately two and one-half years later, on June 18,1993, Whittaker moved to intervene as a third party plaintiff. The plaintiff objected, asserting that, because the motion had not been filed within thirty days of receipt of the notice as required under § 31-293 (a), it was untimely. The trial court, Hendel, J., agreed with the plaintiff and denied Whittaker’s motion. Whittaker appealed from the decision of the trial court to the Appellate Court, which reversed the trial court’s decision and remanded the case with direction to allow Whittaker to intervene. Rana v. Ritacco, 36 Conn. App. 635, 637-38, 652 A.2d 1040 (1995).

The Appellate Court reasoned that although § 31-293 (a) requires a party to intervene within thirty days of receipt of notice of the third party action, such time limit applies only where notice was properly given. Id., 638. In this case, the Appellate Court concluded that notice was improper and, therefore, that Whittaker could intervene at any time. Id., 640. The Appellate Court reasoned that proper notice requires the satisfaction of two elements. First, the potential intervenor must be notified that a third party action has been brought. Id., 639. In the Appellate Court’s view, an action is brought only when “service of process has been made upon a defendant . . . and returned to court.” Id. Second, a potential intervenor must be notified of the court to which the writ in the action is returnable. Id. The Appellate Court implicitly reasoned that because the plaintiff had failed to comply with the first prong in that she had notified Whittaker of the third party action prior to the date that the writ was returned to court, notice was not proper and Whittaker could intervene at any time. Id., 639-40.

Following the Appellate Court’s decision to allow Whittaker to intervene, the plaintiff petitioned this court for certification to appeal, which we granted. We now reverse the judgment of the Appellate Court.

“ ‘General Statutes § 31-293 grants to an employer who has paid workers’ compensation a right to join as a party plaintiff in actions by employees against third party tortfeasors; Robinson v. Faulkner, 163 Conn. 365, 377, 306 A.2d 857 (1972); provided that the right is exercised in a timely fashion. Olszewski v. State Employees' Retirement Commission, 144 Conn. 322, 325, 130 A.2d 801 (1957).’ Ricard v. Stanadyne, Inc., [181 Conn. 321, 323, 435 A.2d 352 (1980)].” Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 537, 582 A.2d 1174 (1990); accord Durrschmidt v. Loux, 230 Conn. 100, 103, 644 A.2d 343 (1994). By authorizing “an employer to obtain reimbursement for workers’ compensation benefits from a third party tortfeasor . . . [§ 31-293] implements the public policies of preventing double recovery by an injured employee; Durniak v. August Winter & Sons, Inc., 222 Conn. 775, 779-80, 610 A.2d 1277 (1992); and thereby containing the cost of workers’ compensation insurance.” Quire v. Stamford, 231 Conn. 370, 375, 650 A.2d 535 (1994).

“[U]nder § 31-293, an employee or employer who brings a third party action must simply notify the other of two facts: (1) the fact that the action has been brought; and (2) the name of the court to which the writ in the action is returnable. The plain terms of the statute require no more.” Winslow v. Lewis-Shepard, Inc., supra, 216 Conn. 538; Durrschmidt v. Loux, supra, 230 Conn. 104.

Once a potential intervenor has been properly notified, he has thirty days within which to intervene. General Statutes § 31-293 (a). “[I]f an employer or employee who is properly notified of a third party action fails to intervene in the action as a party plaintiff within thirty days from notification, ‘his right of action against such third person shall abate.’ ” Skitromo v. Meriden Yellow Cab Co., 204 Conn. 485, 489, 528 A.2d 826 (1987); see General Statutes § 31-293 (a). On the other hand, “[a]n employer who does not receive notice from an employee concerning the institution of a third party-action in accordance with § 31-293 ‘[cannot] be barred from intervening by the passage of the time which this statute prescribes, because, until notice is given, the time does not begin to run.’ Lakewood Metal Products, Inc. v. Capital Machine & Switch Co., 154 Conn. 708, 710, 226 A.2d 392 (1967).” Winslow v. Lewis-Shepard, Inc., supra, 216 Conn. 537; Durrschmidt v. Loux, supra, 230 Conn. 103. In this case, we conclude that the plaintiff properly notified Whittaker of the third party action. Therefore, because Whittaker failed to intervene within thirty days of the date it received notice, its right of action against the defendant has abated.

Whittaker claims that the notice it received did not comply with the requirements of § 31-293 (a) because the notice did not properly inform the company of “the fact that the action has been brought” by the plaintiff. Winslow v. Lewis-Shepard, Inc., supra, 216 Conn. 538. Relying on the Appellate Court’s interpretation of the law, Whittaker argues that on the day it received notice, the action had not been brought because the writ had not yet been returned to the Superior Court. We disagree with the Appellate Court’s statement of the law and, consequently, we disagree with Whittaker’s position.

As we stated above, an employee or employer bringing a third party action must notify the other (1) that a third party action has been brought, and (2) of the name of the court to which the writ is returnable. This court has long held that an action is brought once the writ, summons and complaint have been served upon a defendant. See General Statutes § 52-45a; Practice Book § 49; Hillman v. Greenwich, 217 Conn. 520, 527, 587 A.2d 99 (1991) (“an action is commenced on the date of service of the writ upon the defendant” [internal quotation marks omitted]); Lacasse v. Burns, 214 Conn. 464, 475, 572 A.2d 357 (1990) (“an action is not ‘commenced’ until process is actually served upon the defendant”); McGaffin v. Roberts, 193 Conn. 393, 401-402 n.9, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985); Valley Cable Vision, Inc. v. Public Utilities Commission, 175 Conn. 30, 33-34, 392 A.2d 485 (1978); Broderick v. Jackman, 167 Conn. 96, 99, 355 A.2d 234 (1974) (“an action is commenced not when the writ is returned but when it is served upon the defendant”); Seaboard Burner Corp. v. DeLong, 145 Conn. 300, 303, 141 A.2d 642 (1958); Consolidated Motor Lines, Inc. v. M & M Transportation Co., 128 Conn. 107, 109, 20 A.2d 621 (1941); Spalding v. Butts, 6 Conn. 28, 30 (1825).

The Appellate Court, however, strayed from this established rule and concluded that an action is not brought until a defendant has been served and such service has been returned to court. Broderick v. Jackman, supra, 167 Conn. 99. Otherwise, the court reasoned, there would be no existing action in which an employer could intervene. The Appellate Court relied on Rogozinski v. American Food Service Equipment Corp., 211 Conn. 431, 433, 559 A.2d 1110 (1989), to add this second requirement. In Rogozinski, we concluded that the trial court had properly dismissed the plaintiffs’ action for failure to file the return of process with the court at least six days prior to the return date. Id., 435. Rogozinski interpreted General Statutes § 52-46a, which provides that process must be returned to the Superior Court at least six days before the return day. Id., 433. There is no indication that compliance with § 52-46a is a prerequisite in order for an action to be considered “brought.” Rather, once an action has been brought by service of process on the defendant, a trial court may thereafter dismiss the action for failure to return the service of process within the mandated time period.

The Appellate Court reasoned that a potential intervenor could be prejudiced by a holding that an action is brought once service of process had been made. “To hold that an employee may give notice of an action before service has been made on a defendant and returned to court would allow a plaintiff to thwart the purposes of § 31-293. In civil actions, a return day may be set up to two months after the date of process. General Statutes § 52-48 (b). Such process need not be served on the defendant until twelve days prior to the return day and need not be returned to the court until six days prior to the return day. General Statutes §§ 52-46 and 52-46a. If a plaintiff were allowed to send § 31-293 notice on the date that the complaint is issued, the thirty day period provided in the statute could run before there was any action in existence in which the employer could intervene.” Rana v. Ritacco, supra, 36 Conn. App. 639-40.

Although we recognize the Appellate Court’s legitimate concerns, we refrain from imposing the additional requirement that service must be returned to court before an action is considered “brought.” Rather, we adopt the suggestion proffered by the amicus curiae in its brief to this court to permit late intervention by a potential intervenor who can make a showing of actual prejudice arising out of the receipt of notice prior to the return of service to the court. A party who brings a third party action and properly notifies his or her employer of such action pursuant to § 31-293 (a) ordinarily will be permitted to pursue this action without the intervention of the employer if the employer fails to comply with the thirty day limit for intervening. If, however, the employee purposefully manipulates the time periods provided in §§ 31-293, 52-46a and 52-48 (b) in order to create a situation in which an employer cannot intervene within thirty days because the action is returned to court after the expiration of the thirty days, the employee will not be permitted to claim that the employer’s right to intervene has abated. Provided that the employee has furnished proper notice in accordance with § 31-293 (a), it is the employer’s responsibility to inquire whether an action has been returned to court and has been assigned a docket number so that it can intervene. In our view, this construction of the requirements of § 31-293 (a) adequately furthers the goal of the statute, namely, to “[protect] an employer by allowing the employer to obtain reimbursement for workers’ compensation benefits from a third party tortfeasor ... by becoming an intervening plaintiff in the employee’s cause of action.” Durniak v. August Winter & Sons, Inc., supra, 222 Conn. 779.

Whittaker additionally argues that the notice it received was defective because it was internally inconsistent in that it alternatively stated that an action had been commenced and that it was being commenced concurrently with the issuance of notice. We attach no significance to this inconsistency in the absence of some evidence of actual prejudice. We recognize that the operation of § 31-293 (a) in practice is such that all paperwork is completed together, thus resulting in notice often being mailed on the same day that the summons is given to a sheriff to be served. By the time the potential inteivenor receives the notice, the defendant has likely been served, as in the present case, and the potential intervenor will need to take no more action than if service had actually been completed prior to notice being sent. In either case, the intervenor will need only to contact the court at some point before thirty days expire to learn whether the writ has been returned and a docket number has been assigned to the action.

Furthermore, the language of § 31-293 (a) does not indicate that service must have been completed before notice can be sent. Rather, the statute indicates that a plaintiff must “immediately notify the [employer], in writing ... of the action and of the name of the court to which the writ is returnable . . . .” That is precisely what the plaintiff did in this case. She notified Whittaker immediately of the action against the defendant and the name of the court to which the writ would be returned. In the absence of any resulting prejudice to Whittaker, it had thirty days to intervene. Failing to do so, its right of action against the defendant abated.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the trial court’s decision denying the motion to intervene.

In this opinion the other justices concurred.

       General Statutes § 31-293 provides in relevant part: “Liability of third persons to employer and employee. ... (a) When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a third person other than the employer a legal liability to pay damages for the injury, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of the injured employee against the third person, but the injured employee may proceed at law against the third person to recover damages for the injury; and any employer having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against the third person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee. If either the employee or the employer brings an action against the third person, he shall immediately notify the other, in writing, by personal presentation or by registered or certified mail, of the action and of the name of the court to which the writ is returnable, and the other may join as a party plaintiff in the action within thirty days after such notification, and, if the other fails to join as a party plaintiff, his right of action against the third person shall abate. In any case in which an employee brings an action against a third party in accordance with the provisions of this section, and the employer is a party defendant in the action, the employer may join as a party plaintiff in the action. The bringing of any action against an employer shall not constitute notice to the employer within the meaning of this section. If the employer and the employee join as parties plaintiff in the action and any damages are recovered, the damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of the recovery, after the deduction of reasonable and necessary expenditures, including attorneys’ fees, incurred by the employee in effecting the recovery. ...” (Emphasis added.)
      We note that on July 1,1993, § 31-293 (a) was amended with the addition of, inter alia, the following sentence: “Notwithstanding the provisions of this subsection, when any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a third person other than the employer a legal liability to pay damages for the injury and the injured employee has received compensation for the injury from his employer or its workers’ compensation insurance carrier pursuant to the provisions of this chapter, the employer or insurance carrier shall have a lien upon any judgment received by the employee against the third party or any settlement received by the employee from the third party, provided the employer or insurance carrier shall give written notice of the lien to the third party prior to such judgment or settlement.” Public Acts 1993, No. 93-228, § 7.
      “We look to the statute in effect at the date of injury to determine the rights and obligations between the parties. See Civardi v. Norwich, 231 Conn. 287, 293 n.8, 649 A.2d 523 (1994); Iacomacci v. Trumbull, 209 Conn. 219, 222, 550 A.2d 640 (1988).” Dos Santos v. F. D. Rich Construction Co., 233 Conn. 14, 15-16 n.1, 658 A.2d 83 (1995). Because the plaintiffs injury occurred in 1989, the amendment to § 31-293 (a) does not apply.

       The notification letter provides: “In accordance with Section 31-293 of the Connecticut General Statutes, this will inform you that suit has been commenced on behalf of Barbara Rana in the above-noted matter.
      “Enclosed please find copy of Writ, Summons and Complaint which has this day been forwarded to our sheriff for service on the named defendant. You will note that this action is being brought in the New London Judicial District at Norwich and has a return date of January 22, 1991.”

       We granted the plaintiffs petition for certification to appeal, limited to the following issue: “In the circumstances of this case, did the plaintiffs notice to her employer comply with the requirements of General Statutes § 31-293?” Rana v. Ritacco, 232 Conn. 918, 655 A.2d 261 (1995).

       Where a cause of action has been created by statute, strict compliance with the prescribed procedure is essential. See Main v. North Stonington, 127 Conn. 711, 712, 16 A.2d 356 (1940). “The general rule is that where a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right — it is a limitation of the liability itself as created, and not of the remedy alone.” DeMartino v. Siemon, 90 Conn. 527, 528-29, 97 A. 765 (1916).

       Whittaker does not dispute that it was properly notified of “the name of the court to which the writ is returnable.” General Statutes § 31-293 (a); see Winslow v. Lewis-Shepard, Inc., supra, 216 Conn. 538.

       General Statutes § 52-45a provides: “Commencement of civil actions. Contents and signature of process. Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day and the date and place for the filing of an appearance. The writ shall be accompanied by the plaintiffs complaint. The writ may run into any judicial district and shall be signed by a commissioner of the superior court or a judge or clerk of the court to which it is returnable.”
      We have held that there is no distinction between “commencing” and “bringing” an action. Lacasse v. Burns, 214 Conn. 464, 475-76, 572 A.2d 357 (1990).

       Practice Book § 49 provides in relevant part: “Mesne process in civil actions shall be a writ of summons or attachment, describing the parties, the court to which it is returnable and the time and place of appearance, and shall be accompanied by the plaintiffs complaint. Such writ may run into any judicial district or geographical area and shall be signed by a commissioner of the superior court or a judge or clerk of the court to which it is returnable. . . .”

       We note that the Appellate Court mistakenly applied its own rule because even under its view of the requirements for an action to be brought, the plaintiff satisfactorily notified Whittaker that an action had been brought. The plaintiff caused process to be served on the defendant on December 27, 1990, which was returned on January 4, 1991. Notice to Whittaker was given on January 7,1991. Therefore, the plaintiff broughtthe action according to the Appellate Court’s own rule before she notified Whittaker.

       General Statutes § 52-46a provides: “Return of process. Process in civil actions returnable to the supreme court shall be returned to its clerk at least twenty days before the return day and, if returnable to the superior court, except process in summary process actions and petitions for paternity and support, to the clerk of such court at least six days before the return day.”

       We note that § 52-46a was complied with in this case because the complaint was returned to the court on January 4, 1991, which was well before the required six days prior to the stated return date of January 22, 1991.

       General Statutes § 52^8 provides in relevant part: “Return day of process. . . .
      “(b) All process shall be made returnable not later than two months after the date of the process and shall designate the place where court is to be held.”

       General Statutes § 52-46 provides: “Time for service. Civil process, if returnable to the supreme court, shall be served at least thirty days, inclusive, before the day of the sitting of the court, and, if returnable to the superior court, at least twelve days, inclusive, before such day.”

       See footnote 9.

       See footnote 2.


source: Caselaw Access Project

author: BERDON, J. BORDEN, J., with whom PALMER, J., joins, NORCOTT, J., CALLAHAN, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. MICHAEL PERSON
    (15228)
    Peters, C. J., and Callahan, Borden, Berdon, Norcott, Katz and Palmer, Js.
    Argued October 24, 1995
    decision released March 19, 1996

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Michele C. Lukban, assistant state’s attorney, with whom were James R. Turcotte, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, and David J. Sheldon, deputy assistant state’s attorney, for the appellee (state).
   BERDON, J.

The principal issue raised in this appeal is whether the Appellate Court properly concluded that the defendant was not entitled to a jury instruction on the affirmative defense of extreme emotional disturbance because the defendant’s trial testimony had contradicted such a defense.

After a jury trial, the defendant, Michael Person, was convicted of the murder of Leshea Pouncey in violation of General Statutes § 53a-54a (a), and of criminal trespass in the first degree in violation of General Statutes § 53a-107 (a) (2). The trial court sentenced the defendant to an effective term of imprisonment of forty-eight years. On appeal to the Appellate Court, the defendant argued that the trial court had improperly refused to charge the jury on the affirmative defense of extreme emotional disturbance. State v. Person, 36 Conn. App. 448, 454, 651 A.2d 754 (1994). The Appellate Court affirmed the judgment of the trial court. Id. We granted the defendant’s petition for certification to appeal and now reverse the judgment of the Appellate Court.

During the trial, defense counsel filed a written request to charge the jury on the defense of extreme emotional disturbance. At the close of the case, the court denied the defendant’s request for two reasons: (1) the defendant on cross-examination had testified that he had not been upset by the events on which he partially relied for the defense; and (2) the defendant had produced insufficient evidence to raise the issue of extreme emotional disturbance. During a colloquy with counsel, out of the presence of the jury, the court stated: “I cannot see extreme emotional disturbance in this case. I don’t see any evidence of it. You are asking in effect for the jury to find the opposite of what the defendant says occurred to support a claim by the defendant that he has offered evidence to support extreme emotional disturbance . . . .” The court further stated: “I assumed from the outset that extreme emotional disturbance would be in this case but I didn’t expect to hear the defendant on the stand denying every question that was asked about him leading to his mental state at various times.” The trial court did instruct the jury on self-defense and on the lesser included offenses of manslaughter in the first degree, manslaughter in the second degree and criminally negligent homicide.

The Appellate Court did not reach the issue of whether there was sufficient evidence to warrant an instruction on extreme emotional disturbance because it held that if, “as in the present case, the defendant specifically disavows having the requisite mental state for the instruction that he seeks, Cassino and Zayas preclude the defendant from obtaining the contradicting instruction.” State v. Person, supra, 36 Conn. App. 453-54. We disagree.

Section 53a-54a (a), in defining the crime of murder, excepts, as an affirmative defense, a homicide committed by a defendant who acts “under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be . . . .” Under such circumstances, if a defendant intentionally causes the death of an individual, but does so under extreme emotional disturbance, the trier of fact may convict the defendant of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (2). State v. Asherman, 193 Conn. 695, 731, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985).

The trial court’s denial of the defendant’s request for an instruction on extreme emotional disturbance raises two issues: (1) whether the defendant’s trial testimony precluded such an instruction because it directly contradicted the defense; and, if not, (2) whether there was sufficient evidence to warrant the requested instruction. We review each of these issues in turn together with their related facts.

I

The following testimony was presented to the jury. The defendant and Pouncey had been romantically involved and had planned to marry. Pouncey, however, terminated their engagement, after which she commenced a relationship with Donald Moody. The defendant testified that on May 19, 1991, he had forcefully entered Pouncey’s apartment while she was away in order to recover his personal belongings. While the defendant was in the rear bedroom gathering his possessions, Pouncey returned home with her child. The defendant further testified that after speaking on the telephone, Pouncey had confronted him in the bedroom with a can of Mace in one hand and two knives in the other. According to the defendant, Pouncey had instigated a struggle by spraying Mace in his eyes. In the course of the struggle, the defendant stabbed Pouncey. The defendant then fled the apartment and later surrendered himself at the New Haven police station.

On direct examination, the defendant testified, with respect to his state of mind, that he had been “somewhat” upset by the fact that Pouncey had begun dating Moody. On cross-examination, however, when asked if he was “upset because [he] felt that [Moody] was moving in on [his] gal,” the defendant responded: “Not really.” Consequently, the court refused to instruct the jury on the defense of extreme emotional disturbance.

“ ‘A fundamental element of due process is the right of a defendant charged with a crime to establish a defense.’ ” State v. Belle, 215 Conn. 257, 273, 576 A.2d 139 (1990), quoting Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). The question before us today is whether a defendant forgoes the right to have a jury instructed on a requested defense if the defendant denies having the state of mind required to establish the requested defense.

It is for the jury to evaluate the credibility of the witnesses and the weight to be accorded the evidence. See State v. Breton, 235 Conn. 206, 234, 663 A.2d 1026 (1995). “The jury is free to juxtapose conflicting versions of events and to determine which is more credible.” State v. Adams, 225 Conn. 270, 278, 623 A.2d 42 (1993). “[T]he [jury] can disbelieve any or all of the evidence . . . and can construe [the] evidence in a manner different from the parties’ assertions. . . .” (Citations omitted.) State v. Steiger, 218 Conn. 349, 381, 590 A.2d 408 (1991). Therefore, because the jury was free to disbelieve the defendant’s testimony, his assertions therein did not preclude a jury instruction on extreme emotional disturbance. Rather, as the state correctly conceded at oral argument, a jury may be instructed on a requested defense theory, even if the defendant has testified to facts that contradict the requested charge, if there is sufficient evidence to warrant the instruction. See State v. Harris, 189 Conn. 268, 273, 455 A.2d 342 (1983).

The Appellate Court’s reliance on State v. Cassino, 188 Conn. 237, 449 A.2d 154 (1982), and State v. Zayas, 3 Conn. App. 289, 489 A.2d 380, cert. denied, 195 Conn. 803, 491 A.2d 1104 (1985), was misplaced. Neither of those cases stands for the proposition that a defendant forfeits a defense theory if he or she testifies to a contradictory fact or conclusion. Our decision in Cassino “was based upon the conclusion that the defendant had failed to introduce sufficient evidence to warrant a self-defense instruction.” State v. Harris, supra, 189 Conn. 274 n.4. Similarly, in Zayas, the defendant requested that the jury be charged on self-defense, but there was insufficient evidence tending to establish that defense. State v. Zayas, supra, 294.

Instructing on a defense for which the defendant has given contradictoiy testimony is particularly appropriate in cases, such as the present one, in which the requested defense involves the defendant’s mental state. The applicability of such a defense theory should not be judged solely upon the defendant’s personal description of his or her own mental status. In fact, we have previously held that “a court may, under certain circumstances, impose a mental status defense [such as extreme emotional disturbance] on an unwilling defendant.” State v. Manfredi, 213 Conn. 500, 516, 569 A.2d 506, cert. denied, 498 U.S. 818, 111 S. Ct. 62, 112 L. Ed. 2d 37 (1990); see State v. Asherman, supra, 193 Conn. 729 (jury instructed on extreme emotional disturbance defense over objection of defendant).

This analysis is consistent with the rule that a defendant is permitted to present inconsistent defenses to a jury. State v. Harris, supra, 189 Conn. 273. In Harris, the defendant asserted two inconsistent defenses: (1) an alibi defense; and (2) an affirmative defense that the gun used in the alleged crimes was a toy. Id., 271-72. The state argued that “contrived defenses would result [i]f a defendant could deny participation in a robbery, offer evidence of someone else’s involvement using a toy gun, and still avail himself of the affirmative defense under [General Statutes] § 53a-134 (a) (4).” (Internal quotation marks omitted.) Id., 272. We rejected the state’s argument and held that “inconsistent defenses may be interposed in a criminal case. . . . [The fact t]hat a defense is inteiposed which is inconsistent with the defendant’s alibi theory does not preclude an instruction as to that defense. . . . [T]he fact that one defense is on the theory that [the] accused did not commit the offense, as where he relies on alibi, does not deprive him of the right to avail himself of other defenses. ... To compel a defendant to admit guilt in order to invoke a defense effectively relieves the prosecution of proving his guilt beyond a reasonable doubt and frustrates the assertion of the defense itself and undermines its policy.” (Citations omitted; internal quotation marks omitted.) Id., 273.

In Mathews v. United States, 485 U.S. 58, 108 S. Ct. 883, 99 L. Ed. 2d 54 (1988), the United States Supreme Court addressed an issue similar to the one raised in this case. In Mathews, the defendant requested a jury instruction on the affirmative defense of entrapment, despite the fact that he had denied commission of the crime. The court held “that even if the defendant denies one or more elements of the crime [or defense], he is entitled to an [instruction on his requested affirmative defense] whenever there is sufficient evidence from which a reasonable jury could find [the defense].” Id., 62. Noting that a defendant may put forward inconsistent defenses, the court stated that “[w]e do not think that allowing inconsistency necessarily sanctions perjury. . . . Inconsistent testimony by the defendant seriously impairs and potentially destroys his [or her] credibility. While we hold that a defendant may both deny [certain] acts . . . and at the same time claim [a defense inconsistent with his or her testimony], the high risks to him [or her] make it unlikely as a strategic matter that he [or she] will choose to do so.” (Citation omitted; internal quotation marks omitted.) Id., 65-66.

Similarly, we hold that no rule of law prevents a jury from being charged, when requested, on the defense of extreme emotional disturbance simply because the defendant has testified that he or she was not upset. It is for the trier of fact to determine the weight to be accorded evidence. See State v. Breton, supra, 235 Conn. 234. Therefore, the question of whether a requested charge on extreme emotional disturbance was warranted in this case must be answered by determining whether there was sufficient evidence to merit an instruction on the defense.

II

The affirmative defense of extreme emotional disturbance, unknown to the common law, is authorized by § 53a-54a. Proof of this defense by a preponderance of the evidence; General Statutes § 53a-12; entitles the defendant to a conviction of manslaughter in the first degree, instead of a conviction of murder. General Statutes § 53a-55. “Section 53a-54a describes the two elements of [the affirmative defense of extreme emotional disturbance]: (1) the defendant committed the offense under the influence of extreme emotional disturbance; and (2) there was a reasonable explanation or excuse for the defendant’s extreme emotional disturbance.” State v. Forrest, 216 Conn. 139, 148, 578 A.2d 1066 (1990). In an effort to “[interpret] the meaning of the phrase extreme emotional disturbance . . . [this court has] enumerated understandable guidelines for instructing a jury in determining the presence or absence of that mental condition”; (internal quotation marks omitted) id.; but they are neither conclusive nor exclusive. “[A]n extreme emotional disturbance is one where self-control and reason are overborne by intense feelings such as passion, anger, distress, grief, excessive agitation or other similar emotions.” State v. Elliott, 177 Conn. 1, 9, 411 A.2d 3 (1979). “[A] homicide influenced by an extreme emotional disturbance [however] is not one which is necessarily committed in the ‘hot blood’ state but rather can be one brought about by a significant mental trauma that caused the defendant to brood for a long period of time and then react violently, seemingly without provocation.” State v. Asherman, supra, 193 Conn. 733-34. “In the final analysis, the ultimate determination of the presence or absence of extreme emotional disturbance is one of fact for the trier . . . .” (Internal quotation marks omitted.) State v. Raguseo, 225 Conn. 114, 122, 622 A.2d 519 (1993).

If there is sufficient evidence of a legal defense, the defendant is entitled, as a matter of law, to a requested jury charge on that defense. State v. Lewis, 220 Conn. 602, 618-19, 600 A.2d 1330 (1991); State v. Havican, 213 Conn. 593, 597, 569 A.2d 1089 (1990); State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986); State v. Rosado, 178 Conn. 704, 707-708, 425 A.2d 108 (1979). It is well established in Connecticut that a defendant is entitled to have the jury instructed on any general defense “for which there is any foundation in the evidence, no matter how weak or incredible.” (Internal quotation marks omitted.) State v. Havican, supra, 597; State v. Fuller, supra, 278. This standard is appropriate when a defendant raises a general defense and the state has the burden of disproving that defense beyond a reasonable doubt. General Statutes § 53a-12 (a).

The “any evidence” standard has been improperly applied, however, to affirmative defenses. See State v. Belle, 215 Conn. 257, 275, 576 A.2d 139 (1990) (license as affirmative defense to criminal trespass); see also State v. Bryan, 34 Conn. App. 317, 324, 641 A.2d 443 (1994) (affirmative defense of extreme emotional disturbance). In those cases, the fact that it is the defendant who shoulders the burden of proving an affirmative defense by a preponderance of the evidence was not taken into consideration. To the extent that those cases have held that “any evidence” is sufficient for a defendant to be entitled to a requested instruction regarding an affirmative defense, they are overruled. Because the defendant bears the burden of proof of an affirmative defense; General Statutes § 53a-12 (b); we now hold that a defendant is entitled to a requested instruction on the affirmative defense of extreme emotional disturbance only if there is sufficient evidence for a rational juror to find that all the elements of the defense are established by a preponderance of the evidence.

In the present case, despite the defendant’s testimony regarding his state of mind, there was sufficient evidence to require the trial court to instruct the jury on the requested defense of extreme emotional disturbance. “The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. This is especially true where a person has caused the death of another person.” (Internal quotation marks omitted.) State v. Ray, 228 Conn. 147, 155, 635 A.2d 777 (1993). The evidence required to establish a defense based on extreme emotional disturbance often is circumstantial. See State v. Asherman, supra, 193 Conn. 732; State v. Rodriguez, 180 Conn. 382, 404, 429 A.2d 919 (1980) (“[bjecause it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proved by circumstantial evidence”).

The following evidence pertaining to the defendant’s emotional disturbance was introduced at trial. In 1990, the defendant and Pouncey had an intimate relationship and planned to marry. During that year, the defendant and Pouncey shared an apartment in New Haven until the defendant relocated to Atlanta, Georgia, in June. In September, 1990, the defendant returned to Connecticut and resumed his cohabitation with Pouncey until February, 1991. In April, 1991, the defendant gave Pouncey an engagement ring, which she initially accepted, but soon thereafter returned. The defendant continued to contact Pouncey in the hope that their relationship could be salvaged. After her engagement to the defendant had terminated, Pouncey commenced a relationship with Moody. On April 16, 1991, Pouncey alleged that she was being harassed by the defendant and obtained a restraining order against the defendant. Despite the restraining order, the defendant continued to contact Pouncey.

During the afternoon of May 19, 1991, the day of the murder, the defendant called a friend, Earl Carthens, threatening that he “was going to get even with [Pouncey]” and “make her pay for what she did to [him].” Later that day, the defendant met with Pouncey in the hall outside her apartment and spoke with her for approximately twenty minutes. Upon leaving, the defendant spotted Moody approaching Pouncey’s apartment building and rushed to a pay phone to inform Pouncey that “her friend was on his way.” Shortly thereafter, the defendant called again. This time Pouncey handed the receiver to Moody. In his conversation with Moody, the defendant sounded upset and threatened to kill both Moody and Pouncey. After the defendant’s telephone call, Pouncey called the police to report the defendant’s harassment and thereafter went out for the evening.

While Pouncey was away from her apartment, the defendant forcibly entered the apartment in order to retrieve his personal belongings. Pouncey returned home with her child while the defendant was in the rear bedroom gathering his possessions. A struggle ensued and, as a result, Pouncey was fatally stabbed. Arkady Katsnelson, an associate medical examiner, testified that in addition to being stabbed in her chest, back and buttocks, Pouncey had several defensive wounds on her hands. The defendant then fled the apartment and went to Carthens’ home. Carthens testified that the defendant had looked “tired,” “drained” and “exhausted.” Accompanied by Carthens and the pastor of his church, the defendant went to the New Haven police station to surrender himself. Carthens further testified that the defendant had not spoken on the way to the station and had looked as if “he was out of it.” Lieutenant David G. Burleigh, the police officer who had taken the defendant’s oral and written statements, testified that the defendant “was very emotional. He was crying and repeating over and over, ‘just lock me up, just lock me up.’ ”

From this evidence, the jury could have reasonably concluded that “the defendant committed [Pouncey’s murder] under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse . . . .” General Statutes § 53a-54a (a). Therefore, we conclude that there was sufficient evidence to warrant an instruction, and that the trial court was required to charge the jury on the defense of extreme emotional disturbance as the defendant had requested.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court and to remand the case to that court for a new trial.

In this opinion PETERS, C. J., and BORDEN, KATZ and PALMER, Js., concurred.

BORDEN, J., with whom PALMER, J., joins,

concurring. I agree with and join the majority opinion because it accurately states our current law and appropriately applies that law to the facts of this case. I write separately, however, to point out an anomaly that is embodied in our law, which is consistent with the criminal law generally, regarding the ability of a defendant to present inconsistent defenses.

I agree that our law has traditionally permitted the presentation of inconsistent defenses in a criminal case. See, e.g., State v. Harris, 189 Conn. 268, 273, 455 A.2d 342 (1983). This is consistent with the general rule throughout the states; see 22 C.J.S., Criminal Law § 54 (1989); and the federal system. See Mathews v. United States, 485 U.S. 58, 63, 108 S. Ct. 883, 99 L. Ed. 2d 54 (1988). Thus, we have decided that, if the defendant seeks to have inconsistent theories of defense that the evidence supports presented to the jury, he is entitled thereto. See State v. Harris, supra, 273.

Although in Harris we implicitly decided the issue in this case, we have never explicitly discussed that issue, namely, whether the defendant is entitled to a jury instruction on a theory of defense that his own testimony squarely contradicts, where there is other evidence in the case that does, nonetheless, support that theory of defense. Put another way, is a defendant entitled to a jury instruction on a theory of defense that would require the jury wholly to reject his testimony in order to acquit him on the theory of defense that he seeks to have presented to the jury?

Answering this question in the affirmative injects an element of anomaly into our criminal law. It would require the court, for example, to give a jury instruction on both alibi and self-defense as theories of defense, in an assault case in which the defendant had testified that he was in Chicago at the time of the crime, and yet witnesses testifying that he was involved in the physical altercation indicated that he was defending himself. Thus, in order for the jury to acquit the defendant on the self-defense theory, it would have to disbelieve his own testimony that he was in Chicago. One cannot deny that there is something irrational about such an application of the principle permitting the presentation of inconsistent defenses.

Nonetheless, I agree that this is the way in which this case should be decided. I am unable to find any court that has departed from the traditional rule, simply because the defendant’s testimony is inconsistent with one of his theories of defense. The law appears to be nearly universal in this respect. I do not see a sufficient reason for our law to be out of step with this generally accepted rule.

Significantly, as the majority aptly notes, the United States Supreme Court, as a matter of federal criminal law, has recently and specifically held that the traditional rule applies, even when the defendant’s own testimony contradicts one of his theories of defense. See Mathews v. United States, supra, 485 U.S. 62 (defendant who testified that he had not committed crime entitled to jury instruction on inconsistent theory of entrapment into commission of crime). Moreover, the majority of the United States Supreme Court took this position notwithstanding a dissent specifically arguing that it invites perjury, turns a criminal trial into sport rather than a search for truth, and results in increased jury confusion. Id., 70-73. (White, J., dissenting). Thus, although this decision was based on federal criminal law, and not the constitution and, therefore, we are not bound by it in deciding what our law should be, it is nonetheless persuasive. Finally, I am persuaded also by the concurring comment in Mathews that, when a defendant takes truly inconsistent positions, it will be “self-penalizing”; id., 68 (Scalia, J., concurring); because it will invite prosecutorial argument pointing out the inconsistency, and will encourage jury skepticism about his entire defense.

NORCOTT, J.,

concurring. I agree with part II of the majority opinion and concur in the result reached in part I of the majority opinion. With regard to the first issue, I am in agreement with the dissent of Justice Callahan that, to the extent that State v. Harris, 189 Conn. 268, 455 A.2d 342 (1983), must be read to require the trial court to give an instruction on an alternative inconsistent defense regardless of what the defendant has stated in relation to that defense in his testimony, essentially on the ground that the jury could find the defense established if it disbelieves the defendant’s own testimony relevant to that defense, Harris goes too far. I find it hard to accept that the right to present a defense includes the right to present to the jury a defense that the defendant’s own testimony directly and conclusively contradicts. I am convinced, however, that this is not such a case, both because the assessment of one’s emotional state involves a combination of complex factors and judgments and, therefore, testimony regarding one’s prior emotional state should be assessed more flexibly, and because, as the majority states, the defendant’s testimony as to his emotional state when the attack on the victim occurred was somewhat equivocal. Further, I believe that in the present case, the evidence adduced in support of the affirmative defense sought, although hardly overwhelming, was sufficient, despite the defendant’s testimony, to support a finding by a jury that the defense was established by a preponderance of the evidence.

CALLAHAN, J.,

dissenting. I cannot believe that the legislature in enacting General Statutes § 53a-54a, establishing extreme emotional disturbance as an affirmative defense, intended that a defendant would be entitled to a jury instruction on that defense when he explicitly disavowed the necessary state of mind. If, as the majority believes, there is case law that mandates a jury instruction under such circumstances, we should take the opportunity provided by this case to change it. Otherwise, the legislative mandate placing the burden of proof of extreme emotional disturbance upon the defendant is nullified. Certainly a defendant who testifies, as did this defendant, that he was only “somewhat” upset, “[n]ot really” upset and not bothered by the termination of his relationship with the victim has not begun to prove extreme emotional disturbance by a preponderance of the evidence. The “term ‘extreme’ refers to the greatest degree of intensity away from the norm for that individual.” State v. Elliott, 177 Conn. 1, 10, 411 A.2d 3 (1979). Moreover, I cannot see how other evidence could override the defendant’s expression of his own subjective state of mind, which is the only issue germane to a defense of extreme emotional disturbance. This is not an insanity defense where a deranged defendant may himself deny being insane but produce expert testimony that would require the inclusion of an insanity instruction in the trial court’s charge. See General Statutes § 53a-13. If an express disavowal of extreme emotional disturbance does not foreclose an instruction on extreme emotional disturbance, then such an instruction should be given at the end of virtually every murder trial because such crimes rarely take place in an emotional vacuum. I do not think, however, that universal application of the defense was intended by the legislature. In sum, I would conclude that when a defendant disavows the state of mind necessary to constitute extreme emotional disturbance, he is not entitled to an instruction as to that mitigant.

Moreover, although there was evidence adduced at trial of circumstances that possibly could have caused a theoretical defendant to be extremely emotionally disturbed and even evidence that this defendant was upset at various times, there was no testimony that at the time that he killed the victim the defendant was extremely emotionally disturbed. The only testimony elicited as to that time frame was, in fact, to the contrary. I believe that the majority confuses evidence of conditions that could have caused the defendant to be extremely emotionally disturbed with evidence that he was, in fact, extremely emotionally disturbed when he killed the victim. The only testimony as to the defendant’s state of mind when he killed the victim was supplied by the defendant. His testimony was that at that time he was not extremely emotionally disturbed, that he was acting in self-defense and that while so acting he inadvertently killed the victim without any intention to do so. Testimony concerning the defendant’s emotional involvement with the victim and his perception that she was “doing him wrong” does not equate with extreme emotional disturbance when the defendant himself disclaims such a reaction. I would conclude that because the evidence at trial would not have permitted a jury reasonably to find that the defendant had proven extreme emotional disturbance by a preponderance of the evidence, a jury instruction on that defense was not warranted.

I would affirm the judgment of the Appellate Court.

       General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       The defendant was also charged with risk of injury to a child in violation of General Statutes § 53-21, for which charge the trial court granted the defendant’s motion for a judgment of acquittal.

       We certified the following issue: “Under the circumstances of this case, did the Appellate Court properly conclude that the defendant was not entitled to an instruction on the defense of extreme emotional disturbance?” State v. Person, 232 Conn. 919, 919-20, 656 A.2d 670 (1995).

       The trial court instructed the jury on manslaughter in the first degree pursuant to General Statutes § 53a-55 (a) (1) and (3) and manslaughter in the second degree pursuant to General Statutes § 53a-56, but refused to instruct on manslaughter in the first degree predicated on extreme emotional disturbance pursuant to § 53a-55 (a) (2).

        State v. Cassino, 188 Conn. 237, 449 A.2d 154 (1982).

        State v. Zayas, 3 Conn. App. 289, 489 A.2d 380, cert. denied, 195 Conn. 803, 491 A.2d 1104 (1985).

       General Statutes § 53a-55 provides in relevant part: “(a) A person is guilty of manslaughter in the first degree when ... (2) with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he committed the proscribed act or acts under the influence of extreme emotional disturbance, as provided in subsection (a) of section 53a-54a, except that the fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subsection . . . .”

       At oral argument the state modified its position by conceding that while there is no per se rule that would deny the defendant his requested charge, the defendant had failed to meet his initial burden of producing sufficient evidence to substantiate the charge.

       On direct examination, the defendant testified accordingly:
      “Q. So that at the end of April you became aware that she was seeing a fellow named Donald Moody.
      “A. Yes.

        “Q. Did that upset you or concern you?
      “A. Somewhat. She said it was a friendship basis.”

      The cross-examination of the defendant included the following testimony:
      “Q. When you entered that apartment that was indeed your intent to kill Donald Moody and Leshea Pouncey, wasn’t it?
      “A. No, sir.
      “Q. Because you were upset because you felt that Donald was moving in on your gal.
      "A. Not really.
      “Q. Not really?
      “A. No.
      “Q. That didn’t bother you?
      “A. No.”

      See footnote 8.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged.”

       We note that credibility is fragile. Although inconsistent defenses and contradictory testimony may be proffered by a defendant, common sense instructs us that a consistent defense theory and consistent testimony are most credible.

       Expert testimony is not required to establish the defense of extreme emotional disturbance. State v. Fair, 197 Conn. 106, 111, 496 A.2d 461 (1985), cert. denied, 475 U.S. 1096, 106 S. Ct. 1494, 89 L. Ed. 2d 895 (1986). The defendant’s own testimony or the testimony of a lay witness may be offered to prove that the defendant was acting under extreme emotional disturbance.

       We have inteipreted “extreme emotional disturbance” to mean that “(a) the emotional disturbance is not a mental disease or defect that rises to the level of insanity as defined by the Penal Code; (b) the defendant was exposed to an extremely unusual and overwhelming state, that is, not mere annoyance or unhappiness; and (c) the defendant had an extreme emotional reaction to it, as a result of which there was a loss of self-control, and reason was overborne by extreme intense feelings . . . .” State v. Elliott, 177 Conn. 1, 9, 411 A.2d 3 (1979); see State v. Forrest, 216 Conn. 139, 148, 578 A.2d 1066 (1990).

       General Statutes § 53a-12 (a) provides: “When a defense other than an affirmative defense, is raised at a trial, the state shall have the burden of disproving such defense beyond a reasonable doubt.”

       In Bryan, citing State v. Havican, supra, 213 Conn. 597, the Appellate Court improperly stated that the defendant was entitled to an instruction of extreme emotional disturbance “for which there is any foundation in the evidence, no matter how weak or incredible.” (Internal quotation marks omitted.) State v. Bryan, supra, 34 Conn. App. 324. In Havican, however, the “any evidence” standard was properly applied because the defense in question was self-defense, which is not an affirmative defense. As the Havican court stated: “When the legislature has created a legally recognized defense, the defendant is entitled to a proper jury instruction on the elements of the defense so that the jury may ascertain whether the state has sustained its burden of disproving the defense beyond a reasonable doubt.” State v. Havican, supra, 598. Nevertheless, we do not want to imply that in Bryan the evidence was insufficient to require the trial court to instruct on the affirmative defense of extreme emotional disturbance.

       General Statutes § 53a-12 (b) provides: “When a defense declared to be an affirmative defense is raised at a trial, the defendant shall have the burden of establishing such defense by a preponderance of the evidence.”

       Unlike a general defense, such as self-defense, an affirmative defense must be proven by the party seeking the defense by a preponderance of the evidence. To apply the lower standard of “any evidence” would create the possibility of instructing a jury on an affirmative defense that a juror could not reasonably conclude had been established by a preponderance of the evidence.

       Moody testified as follows to the substance of that conversation: “At that time when I answered the phone I said to Michael, I said, Michael, this is Donald. I said, what is going on. The next thing I know he is, I am going to kill both of you, like that. And at that time I said to him, I said, wait a minute, hold up, hold up, you know, and he is going on and on like, well, I didn’t come back from Atlanta to go out like this. He was all upset. He said he was going to kill us and all kinds of crazy other things. I said, Michael, calm down, calm down, this is me, I have known you for a long time. I said — I was trying to talk to him like a man and he was telling me I was — he was going to step into his past and whatever and, he said him and Leshea, should be getting back together and, I was stopping all that, and I said to him, you know, she didn’t tell me none of this, you know, but, you know, I am trying to talk to you as a man and you know, I don’t, you know, you threatened us, and he said, I’m sorry and let me speak to Leshea. At that time I said, she won’t speak to you. If she wants to, that is up to her.” (Emphasis added.)

       Katsnelson, as a result of an autopsy performed on Pouncey’s body, testified that she was stabbed in three locations: her chest; the top of her back; and her buttocks. Katsnelson could not determine the order in which the stab wounds had been inflicted, but he did testify that the one to Pouncey’s chest pierced her aorta, and was fatal within one minute of infliction.

       In State v. Harris, supra, 189 Conn. 268-69, the defendant was charged with robbery in the first degree. He sought a lesser included offense instruction on the basis of his testimony. He testified that he had been merely a witness to, rather than a participant in, the armed robberies at issue, and that the weapon used by the actual robber was merely a toy. Id., 270-71. Thus, in order for the jury to consider his claimed inconsistent theories of defense — namely, an alibi defense, in that he was only a witness to the crimes, and an affirmative defense, in that the weapon was not one from which a shot could be discharged — and thereby convict him of the lesser included offense of robbery in the second degree, the jury would have been required to reject his testimony that he was only a witness to the crimes.

       The record is clear that the defendant’s testimony was squarely inconsistent with the affirmative defense of extreme emotional disturbance. The record indicates that the defendant consistently testified not only that he had no intent to Mil the victim, but that he never even intended to stab her. The defendant testified that the penetration of the victim’s body by two knives was wholly accidental, occurring in the course of what he described as a defensive struggle with her. In brief, he testified repeatedly that when the victim entered the room where he was retrieving his things, she had Mace in one hand and two knives, a large one and a small one, in the other hand. She immediately sprayed his face with Mace, rendering him almost sightless. He then struggled with her, trying to keep her from stabbing him with the knives. When she dropped the large knife, he grabbed her arms and twisted the remaining knife-wielding arm behind her back, and in the course of that struggle the knife unintentionally entered her back. According to his testimony, she then reached down and picked up the large knife, and a similar struggle ensued, in the course of which, again, that knife unintentionally entered her chest.

       Some jurisdictions recognize at least two exceptions to the general rule allowing inconsistent defenses. Specifically, in homicide cases, some jurisdictions will not allow instruction on both accident and self-defense. See, e.g., Bradford v. State, 512 So. 2d 134, 137 (Ala. Crim. App. 1987); People
        v. Shelton, 140 Ill. App. 3d 886, 890, 489 N.E.2d 879 (1986); see also annot., 16 A.L.R.4th 983 (1982). Other jurisdictions have rejected the United States Supreme Court’s reasoning in Mathews and continue to refuse a jury instruction on the entrapment defense when the defendant denies commission of the crime. See, e.g., State v. Soule, 168 Ariz. 134, 137, 811 P.2d 1071 (1991); People v. Gillespie, 136 Ill. 2d 496, 501-503, 557 N.E.2d 894 (1990).

       By so doing, the majority essentially establishes a per se rule that anyone who lolls a former girlfriend or boyfriend is entitled to a jury instruction on extreme emotional disturbance.

       The intent to cause death is itself a prerequisite to the defense of extreme emotional disturbance. See General Statutes § 53a-54a.


author: BORDEN, J.

text:
    WESTCHESTER FIRE INSURANCE COMPANY v. ALLSTATE INSURANCE COMPANY
    (15158)
    Peters, C. J., and Callahan, Borden, Norcott and Palmer, Js.

      Argued November 1, 1995
    decision released March 19, 1996

      Joan Keating-McKeon, with whom, on the brief, was Joseph A. Hourihan, for the appellant (plaintiff).

      Anita M. Varunes, for the appellee (defendant).

      Kurt D. Koehler and William F. Gallagher filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.
   BORDEN, J.

The dispositive issue in this appeal is whether an uninsured motorist insurance carrier that has paid underinsured motorist benefits to its insured may bring a subrogation action against the tortfeasor’s liability insurer, which, the uninsured motorist carrier contends, wrongfully denied coverage of the insured’s claim against the tortfeasor. The plaintiff, Westchester Fire Insurance Company, also known as Crum and Forster Personal Insurance (Crum and Forster), appeals from the judgment of the trial court granting the motion of the defendant, Allstate Insurance Company (Allstate), to strike Crum and Forster’s complaint. Crum and Forster claims that: (1) this case is distinguishable from our decision in Berlinski v. Ovellette, 164 Conn. 482, 494, 325 A.2d 239 (1973), in which we held that an uninsured motorist carrier may not be subrogated to its insured’s claim against an uninsured tortfeasor; and (2) if Berlinski controls, we should overrule it. We agree that Berlinski should be overruled, and we therefore reverse the judgment of the trial court.

The complaint alleged the following facts, which we assume to be true for purposes of the motion to strike. On September 12,1989, William J. Peck, Jr., was injured when the automobile he was driving was struck by an automobile owned by Gilbert A. Knight and operated by Robert A. English. At the time of the accident, English was employed by Vendors, Inc. (Vendors), and was acting as its agent in the course of and within the scope of his employment. Knight’s automobile was insured by Aetna Casualty and Surety Company (Aetna), which provided liability coverage in the amount of $100,000. Aetna paid the full amount of its liability coverage to Peck in settlement of his claim against Knight. Vendors was insured by Allstate under a commercial policy of automobile insurance. After Peck had received the full amount of liability coverage available under Knight’s policy with Aetna, Peck made demand for payment under the liability coverage in Vendors’ policy with Allstate. Allstate denied coverage under Vendors’ policy because the automobile operated by English was not listed on Vendors’ policy as a covered vehicle. Having exhausted all of the available liability policies, Peck then pursued his own underinsured motorist coverage with Crum and Forster. During arbitration proceedings, Crum and Forster settled Peck’s underinsured motorist claim for $72,500.

Crum and Forster then instituted this subrogation action against Allstate, claiming that Allstate had improperly denied benefits that were due Peck under Vendors’ liability policy with Allstate. Crum and Forster alleged that, because General Statutes § 38a-336 (b) requires payment of underinsured motorist benefits only after the limits of all applicable liability policies have been exhausted, if Allstate had properly made payment on Peck’s claim against Vendors, Crum and Forster would not have been required to pay Peck’s underinsured motorist claim against it. Alleging that Allstate had been unjustly enriched by the amount of the payment to Peck, Crum and Forster sought to recover that amount, plus attorney’s fees and the cost of investigation.

Allstate moved to strike Cram and Forster’s complaint, arguing that the cause of action involved an assignment of a personal injury action, which is impermissible under Connecticut law. The trial court granted Allstate’s motion on the ground that Berlinski v. Ovellette, supra, 164 Conn. 482, which invalidated subrogation actions by providers of uninsured motorist benefits, was controlling authority. Crum and Forster then moved the trial court to render judgment on the motion to strike so that it could bring this appeal. The court rendered judgment and this appeal followed.

We first address Cram and Forster’s claim that, in granting Allstate’s motion to strike, the trial court improperly relied on Berlinski as controlling authority because, according to Cram and Forster, Berlinski is distinguishable. Specifically, Crum and Forster argues that, unlike Berlinski, in which the uninsured motorist carrier stepped into the shoes of its insured to bring an action against the uninsured tortfeasor in order to recover moneys that the uninsured motorist carrier had paid to its insured, in this case the insurer is standing not in the shoes of its insured, Peck, but rather in the shoes of English, the tortfeasor. Crum and Forster argues that it was injured by Allstate’s wrongful denial of coverage to English, in light of Allstate’s contract with English’s employer, Vendors. It is the denial of coverage to English, Crum and Forster claims, that triggered this action. Although we agree that Allstate’s denial of coverage to English underlies Crum and Forster’s claim, we are not persuaded that this case is distinguishable from Berlinski.

In Berlinski, the insurance company paid uninsured motorist benefits to its own insured, and then sought to join in its insured’s action against the tortfeasor. Id., 484. In that case, it was the tortfeasor’s wrongdoing that resulted in the insurer’s obligation to pay uninsured motorist benefits, and the insurer therein attempted to prevent the tortfeasor from being unjustly enriched by being relieved of the duty to compensate the injured party.

In the present case, Crum and Forster’s obligation to pay underinsured motorist benefits to its insured arose when Allstate refused to cover Vendors under its liability policy. Thus, although Allstate’s denial of coverage caused Crum and Forster’s loss by triggering its obligation to pay Peck, it is Crum and Forster’s payment to Peck, not Allstate’s denial of coverage to Vendors, that gives rise to Crum and Forster’s subrogation claim.

Thus, although the party in the wrong may differ between the two cases, from the perspective of the uninsured motorist carrier, there is no distinction. In each case, the uninsured motorist carrier has paid benefits that were allegedly properly payable by another party. In both cases, the uninsured motorist carrier is stepping into the shoes of the party it paid in order to recover the payments that it made, and thus to prevent the unjust enrichment of the party whose debt it paid. From the viewpoint of the subrogee, therefore, this case is not distinguishable from Berlinski.

Furthermore, the reasoning of Berlinski equated the subrogation process, by which the insurer would have become entitled to sue for the damages resulting from its insured’s personal injuries, with an assignment of its insured’s cause of action. That assignment, we concluded, carried with it the kind of social evils associated with champerty. See id., 486. We perceive no reason why, if Berlinski remains as our law, the same equivalency would not flow from the subrogation involved in this case. In Berlinski v. Ovellette, supra, 164 Conn. 489, we concluded that, in the context of an uninsured motorist claim, a subrogation action by an insurer against the party responsible for the loss was indistinguishable from an assignment of a personal injury action, which has long been against public policy. See Iseli Co. v. Connecticut Light & Power Co., 211 Conn. 133, 136, 558 A.2d 966 (1989); Whitaker v. Gavit, 18 Conn. 522, 526 (1847). In the absence of a decision overruling Berlinski, therefore, that rule governs the present case, and Crum and Forster may not maintain this action against Allstate.

We therefore turn to Crum and Forster’s argument that we should overrule Berlinski. “Stare decisis, although not an end in itself, serves the important function of preserving stability and certainty in the law. Accordingly, a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it. Maltbie, Conn. App. Proc., p. 226.” (Internal quotation marks omitted.) Kluttz v. Howard, 228 Conn. 401, 406, 636 A.2d 816 (1994). We are persuaded that this is such a case.

When we decided Berlinski, uninsured motorist coverage and insurance provisions for payment of medical expenses were relatively new phenomena and we looked to other jurisdictions for guidance on this issue. We relied on Hardware Dealers Mutual Fire Ins. Co. v. Krueger, 486 P.2d 737 (Okla. 1971) (Hardware Dealers), in which, after making payment of medical expense benefits to its insured, the insurer attempted, in accordance with a subrogation clause in the insurance policy, to sue the tortfeasor in order to recover the payments it had made to its insured. In that case, the Oklahoma Supreme Court determined that the subrogation “provisions merely attempt to change (by transfer) the party entitled to enforce the personal injury claim of [the insured] against the defendant tortfeasor. As applied to the present circumstances there is nothing distinguishable between the effect of subrogation and assignment. While subrogation and assignment have certain technical differences, each operates to transfer from one person to another a cause of action against a third person, and the reasons of policy which make certain causes of action nonassignable would seem to operate as forcefully against the transfer of such causes of action by subrogation.” Id., 738. Quoting that language in Berlinski, we concluded similarly that “ [subrogation, where applied in a manner to transfer the right to designate counsel, to initiate, to settle and generally to control a suit, is not practically different from assignment.” Berlinski v. Ovellette, supra, 164 Conn. 489.

Three months after we decided Berlinski, the Oklahoma Supreme Court, in Aetna Casualty & Surety Co. v. Associates Transports, Inc., 512 P.2d 137, 141 (Okla. 1973), overruled Hardware Dealers, because it recognized that there was a cognizable difference between assignment and subrogation. The “plaintiffs subrogation rights came into existence pursuant to the contract of insurance which existed prior to the time the assured’s cause of action arose, rather than pursuant to an assignment made after the cause of action arose.” Id., 140. “ ‘Under the common law the assignment of right of action in certain classes of tort was condemned. Champerty was penalized under a public policy which sought to restrain “the traffic of merchandising in quarrels, of huckstering in litigious discord”. . . . [T]he reasons in which the ancient doctrine was rooted have not been considered applicable to indemnity insurance. Distinction between the two kinds of cases is obvious. In one there is an assignment, after loss, to a third party, a volunteer, who was under no obligation to the assignor. In the case of the prior insurer, on the other hand, there had been an assumption of liability which would mature into [a] right of action against the insurer whenever loss should occur. In the case of an attempted assignment after loss the consideration therefor moves from the assignee to the assignor. In the case of the prior insurer the consideration — the premium — moves in the opposite direction, from insured to insurer. The two cases axe clearly different, both in their inherent character and in their relation to the public good. . . .’” Id., 141, quoting City of New York Ins. Co. v. Tice, 154 Kan. 176, 180-81, 152 P.2d 836 (1944).

We, however, have continued to adhere to the Berlinski rule, and have applied it to prevent an insurer that had paid uninsured motorist benefits from assuming control over an action that had been instituted by the insured against the tortfeasor. Ciulewicz v. Doyle, 172 Conn. 177, 374 A.2d 175 (1976). We have now decided, however, in light of the overruling of Hardware Dealers, to reexamine Berlinski in order to determine whether its rule remains somd without our reliance on Hardware Dealers.

The heart of the decisions in Hardware Dealers and Berlinski was the characterization of subrogation as the equivalent of assignment. From that point, it was a logical step to the conclusion that, because the cause of action involved personal injuries, the action was barred by the long-standing rule that personal injury actions may not be assigned. We now conclude that, as Crum and Forster contends, the presupposition that subrogation and assignment are indistinguishable is flawed.

The law has recognized two types of subrogation: conventional; and legal or equitable. 73 Am. Jur. 2d 599, Subrogation § 2 (1974 and 1995 Sup.) The difference between these two types of subrogation is crucial to our analysis.

“Conventional subrogation can take effect only by agreement and has been said to be synonymous with assignment. It occurs where one having no interest or any relation to the matter pays the debt of another, and by agreement is entitled to the rights and securities of the creditor so paid.” Id., § 9; see also Security Ins. Co. of New Haven v. Mangan, 250 Md. 241, 242 A.2d 482 (1968).

By contrast, “[t]he right of [equitable] subrogation is not a matter of contract; it does not arise from any contractual relationship between the parties, but takes place as a matter of equity, with or without an agreement to that effect.” Hartford Accident & Indemnity Co. v. Chung, 37 Conn. Sup. 587, 592, 429 A.2d 158 (1981). “The object of [equitable] subrogation is the prevention of injustice. It is designed to promote and to accomplish justice, and is the mode which equity adopts to compel the ultimate payment of a debt by one who, injustice, equity, and good conscience, should pay it.” (Internal quotation marks omitted.) Cottiero v. Ifkovic, 35 Conn. App. 682, 686, 647 A.2d 9, cert. denied, 231 Conn. 938, 651 A.2d 262 (1994). As now applied, the doctrine of equitable subrogation “is broad enough to include every instance in which one person, not acting as a mere volunteer or intruder, pays a debt for which another is primarily liable, and which in equity and good conscience should have been discharged by the latter.” (Internal quotation marks omitted.) Sehremelis v. Farmers & Merchants Bank, 6 Cal. App. 4th 767, 777, 7 Cal Rptr. 2d 903 (1992); see also Compania Anonima Venezolana de Navegacion v. A.J. Perez Export Co., 303 F.2d 692 (5th Cir.), cert. denied, 371 U.S. 942, 83 S. Ct. 321, 9 L. Ed. 2d 276 (1962); American Southern Ins. Co. v. Dime Taxi Service, Inc., 275 Ala. 51, 151 So. 2d 783 (1963); Application of Mach, 71 S.D. 460, 25 N.W.2d 881 (1947). Subrogation is a highly favored doctrine; Smith v. Clavey Ravinia Nurseries, Inc., 329 Ill. App. 548, 69 N.E.2d 921 (1946); Standard Accident Ins. Co. v. Pellecchia, 15 N.J. 162, 104 A.2d 288 (1954); 3105 Grand Corp. v. New York, 288 N.Y. 178, 42 N.E.2d 475 (1942); which courts should be inclined to extend rather than restrict. First National Bank of Atlanta v. American Surety Co., 71 Ga. App. 112, 30 S.E.2d 402 (1944); Menorah Nursing Home, Inc. v. Zukov, 153 App. Div. 2d 13, 548 N.Y.S.2d 702 (1989).

In Berlinski, we failed to consider adequately the distinction between conventional and equitable subrogation. In retrospect, it is plain that Berlinski did not involve a party who had no interest in the matter of paying the debt of another. As the dissent in Berlinski noted, because the insurer was contractually obligated to pay uninsured motorist benefits to its insured, it had a legitimate financial interest in the outcome of the lawsuit. Berlinski v. Ovellette, supra, 164 Conn. 496. Berlinski, therefore, did not involve conventional subrogation.

Instead, Berlinski involved equitable subrogation. The insurer was not acting as a mere volunteer; rather, it was obligated by a preexisting contract of insurance to pay the losses of its insured. Upon such payment, the insurer became subrogated to any rights that its insured might have had against the party who had caused the loss. The tortfeasor, who was the party primarily liable for the losses sustained by the insured, benefited by the insurer’s payment of a debt truly owed by the tortfeasor. We see no logical reason to permit a tortfeasor to be unjustly enriched by virtue of having its debt paid by the insurance company of a party who had the foresight to obtain insurance coverage, and thus to escape all liability for its wrongdoing, simply because the insurance company was not permitted to participate in a suit against the tortfeasor in order to recover the money that it had paid to its insured but which was properly payable by the tortfeasor.

Moreover, the public policy reason most often cited as supporting the rule disallowing the assignment of actions to recover for personal injuries, namely, champerty, simply does not exist in the context of equitable subrogation. As an equitable subrogee, the insurance company in Berlinski, rather than acting as a volunteer or complete stranger to the action, made payment to its insured as the result of a preexisting contract of insurance. Upon payment, the insurer became subrogated to the rights its insured may have had against the party responsible for the loss. Under such circumstances, we need not be concerned about “unscrupulous interlopers and litigious persons [who are] to be discouraged from purchasing claims for pain and suffering and prosecuting them in court as assignees.” Id., 486.

Another concern expressed in Berlinski was that permitting an action by the insurer would prejudice the ability of the injured party to be compensated fully. Id. That concern is also illusory, because in the context of uninsured motorist coverage, the injured party has received full compensation from his uninsured motorist insurance coverage.

Furthermore, the Berlinski rule may lead to unjust results. First, the rule denies the insurance company the opportunity “to compel the ultimate payment of a debt by one who, in justice, equity, and good conscience, should pay it.” (Internal quotation marks omitted.) Cottiero v. Ifkovic, supra, 35 Conn. App. 686. Once the insured has been paid uninsured motorist coverage benefits, he has no incentive to bring an action against the party causing the loss. Second, if the damage had involved property damage, rather than personal injuries, the insurer would be permitted to maintain a subrogation action. “Undoubtedly, the distinction is based on the desire not to allow trafficking in pain and suffering, but since the real beneficiary of the [Berlinski] decision is the uninsured defendant, the distinction should be viewed from his position. So viewed, he would simply shake his head in disbelief if told that his victim’s insurance carrier was going to sue him for the damage to the car and to the ruined Hart Schaffner and Marx suit, but that he wouldn’t have to worry about the fact that the victim is now a paraplegic unless the victim himself brought the action.” W. Horton, “Subrogation Suits After Berlinski,” 47 Conn. B.J. 354, 362-63 (1973). Third, as the present case suggests, continued application of the Berlinski rule might well encourage liability carriers wrongfully to deny liability coverage, in the knowledge that the injured party will be compensated by uninsured motorist benefits paid by his own insurer, while the liability carrier will be shielded from any scrutiny of its decision to deny coverage.

Finally, we note that this subrogation action arises in the context of automobile insurance, a heavily regulated field. Crum and Forster, having provided liability coverage to Peck, was obligated also to provide uninsured motorist coverage. Thus, if any social evils like those contemplated by the rule against champerty arise, the commissioner of insurance has ample authority to take appropriate regulatory action.

We conclude, therefore, that equitable subrogation is not the equivalent of the assignment of a personal injury action, and that in the absence of that starting point, there is no logical support for the decision in Berlinski. Accordingly, we overrule our previous decision in Berlinski v. Ovellette, supra, 164 Conn. 482. We therefore conclude that the trial court improperly granted Allstate’s motion to strike.

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

In this opinion the other justices concurred.

       Crum and Forster appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       Allstate claims, as an alternate ground for affirmance of the trial court’s judgment pursuant to Practice Book § 4066, that this action is barred by the statute of limitations. Allstate did not make this claim in the trial court pursuant to its motion to strike. Thus, because in this case the question of the statute of limitations would necessarily involve factual questions outside the allegations of the complaint, determination of those questions in the context of a motion to strike, either in the trial court or in this court, would be inappropriate. We therefore do not consider Allstate’s alternate ground of affirmance. We need not decide, moreover, whether the defense of the statute of limitations may be considered on a motion to strike when the complaint does contain all of the facts necessary for the proper determination of the defense.

       For purposes oi' this appeal, we will assume, without deciding, that, as Crum and Forster claims, Allstate’s denial of coverage under Vendors’ policy was improper.

       General Statutes § 38a-336 (formerly § 38-175c) provides in relevant part: “Uninsured and underinsured motorist coverage. . . .
      “(b) An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured and underinsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements . . . .”

       Practice Book § 152 provides in relevant part: “Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof. . . .”

       In Ciulewicz v. Doyle, supra, 172 Conn. 178, the plaintiff admitted that the subrogation agreement constituted the assignment of a personal injury claim. To the extent that Ciulewicz may appear to endorse such a conclusion, we also overrule that case.

         Although the second type of subrogation that we discuss has been characterized as legal subrogation, we believe that the more accurate characterization is equitable subrogation because it derives from the equitable principle against unjust enrichment.

       General Statutes § 38a-336 (formerly § 38-175c) provides in relevant part: “Uninsured and underinsured motorist coverage, (a) (1) Each automobile liability insurance policy shall provide insurance, herein called uninsured and underinsured motorist coverage . . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles . . . .”