text:
    STATE OF CONNECTICUT v. NELSON TUCHMAN
    (SC 15582)
    Callahan, C. J., and Berdon, Norcott, Katz and McDonald, Js.

      Argued June 5
    officially released August 12, 1997

      Hubert J. Santos, with whom were Patrick Bristol and, on the brief, Hope C. Seeley, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were David E. Sullivan, assistant state’s attorney, and, on the brief, John M. Bailey, chief state’s attorney, and James E. Thomas, state’s attorney, for the appellee (state).

      Richard Blumenthal, attorney general, and Richard J. Lynch, Arnold I. Menchel and Jennifer C. Jaff, assistant attorneys general, filed a brief for the attorney general as amicus curiae.
   Opinion

CALLAHAN, C. J.

The principal issue in this appeal is whether the double jeopardy clause of the fifth amendment to the United States constitution or article first, § 9, of the Connecticut constitution prohibits the criminal prosecution of the defendant, Nelson Tuchman, for wrongfully obtaining approximately $420,000 in medicaid reimbursement when the state of Connecticut, acting administratively through the department of social services (department), had already sanctioned him for his allegedly criminal conduct.

The following facts and procedural history are undisputed. The defendant was the owner and operator of Winthrop Health Care Center, Inc. (Winthrop), a nursing home facility participating in the medicaid program. The medicaid program, established in 1965 as Title XIX of the Social Security Act and codified at 42 U.S.C. § 1396 et seq., is a joint federal-state venture providing financial assistance to persons whose income and resources are inadequate to meet the costs of, inter alia, necessary nursing home care. See Burinskas v. Dept. of Social Services, 240 Conn. 141, 148, 691 A.2d 586 (1997). States wishing to participate in the medicaid program “must develop a plan, approved by the secretary of health and human services, containing reasonable standards . . . for determining . . . the extent of medical assistance” to be provided. 42 U.S.C. § 1396a (a) (17). Connecticut has elected to participate in the medicaid program and has assigned the task of its administration to the department. General Statutes § 17b-260.

Under the Connecticut medicaid plan, the rate of reimbursement a participating nursing home receives from the department is based on data submitted in the facility’s annual report of long term care costs (cost report). General Statutes §§ 17b-238 (a) and 17b-340; Regs., Conn. State Agencies § 17-311-51. The department is authorized to reduce a provider’s rate of reimbursement in order to recoup overpayments made to the provider based on false or misleading cost reports. General Statutes § 17b-238 (c); Regs., Conn. State Agencies § 17-311-53 (b).

In preparing its annual cost report, a medicaid provider is required to treat costs incurred by virtue of leases executed with a related entity differently from those incurred under leases resulting from arms length transactions. In particular, if the lessor is a related entity that exists solely for the purpose of executing the lease, the provider’s cost cannot exceed the lessor’s actual cost. Regs., Conn. State Agencies § 17-311-52; 42 C.F.R. § 413.17.

In 1993, the department conducted an investigation of Winthrop and determined that: (1) the defendant had submitted cost reports for fiscal years 1986, 1987, 1988 and 1989 that falsely reported Winthrop’s actual expenses and falsely represented certain leases as arms length transactions; and (2) Winthrop thereby wrongfully had obtained approximately $420,000 in excess medicaid reimbursement. Those determinations resulted in the three administrative actions that form the basis of the defendant’s double jeopardy claims. First, pursuant to § 17b-238 (c), the department initiated recoupment proceedings against Winthrop and subsequently withheld approximately $450,000 from Winthrop’s ongoing reimbursement payments. Second, after the department of public health and addiction services placed Winthrop into receivership because it had sustained a serious financial loss that jeopardized patient welfare, the receiver was instructed by the department not to pay the defendant a salary. Third, when Winthrop subsequently was sold, the department included in the facility’s new medicaid contract a restrictive covenant prohibiting Winthrop from doing business with the defendant.

Meanwhile, as a result of an independent police investigation, the defendant was charged with larceny in the first degree in violation of General Statutes §§ 53a-122 (a) and 53a-ll. The specific theory of larceny charged by the state is that the defendant obtained property by false pretenses as defined by General Statutes § 53a-119 (2). Claiming that the department’s actions constituted punishment for purposes of double jeopardy under both the federal and state constitutions, the defendant filed a motion to dismiss. After conducting an evidentiary hearing, the trial court, Koletsky, J., denied the defendant’s motion. The defendant took an interlocutory appeal to the Appellate Court, which we transferred to ourselves pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the trial court’s denial of the defendant’s motion to dismiss.

As a threshold matter, we must determine the applicable standard of review. Because the issue of whether an administrative sanction constitutes punishment for purposes of double jeopardy is a question of law, we review it de novo. See United States v. Morgan, 51 F.3d 1105, 1110 (2d Cir. 1995). The factual findings of the trial court that underlie the determination of that question, however, are entitled to the same deference on appeal that other factual findings command. See State v. Geisler, 222 Conn. 672, 610 A.2d 1225 (1992). Thus, those findings must stand unless they are clearly erroneous. Practice Book § 4061.

The double jeopardy clause of the fifth amendment to the United States constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb . . . .” The double jeopardy clause protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction and multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). In the present case, the third of these protections is at issue. We must determine, therefore, whether any of the three administrative actions taken by the department against the defendant constituted punishment that bars subsequent criminal prosecution.

I

The defendant first maintains that the department’s withholding of approximately $450,000 in medicaid reimbursement from Winthrop constituted punishment to him for purposes of double jeopardy. In State v. Hickam, 235 Conn. 614, 668 A.2d 1321 (1995), cert. denied, 517 U.S. 1221, 116 S. Ct. 1851, 134 L. Ed. 2d 951 (1996), we utilized a two-pronged approach for determining whether administrative action constitutes punishment for purposes of double jeopardy. Under that approach, which is based on the United States Supreme Court’s explicit holding in United States v. Halper, 490 U.S. 435, 448-49, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989), we assess: (1) the purpose the sanction is designed to serve; and (2) the nature of the particular sanction as applied to the defendant. A sanction that primarily serves a legitimate remedial purpose and is related rationally to that purpose does not give rise to a double jeopardy violation. State v. Hickam, supra, 623.

The defendant does not dispute the applicability of the Hickam approach to his federal claims but argues rather that the withholding of funds does not pass muster under either prong of the Hickam test. In particular, he maintains that: (a) the purpose of the statutory recoupment authorization, § 17b-238 (c), is primarily punitive rather than remedial; and (b) the nature of the particular recoupment at issue in this case was punitive. We disagree.

A

On the basis of the language of § 17b-238 (c), the language of its implementing regulation, § 17-311-53 (b) of the Regulations of Connecticut State Agencies, and the legislative history of § 17b-238 (c), we conclude that the legislature intended recoupment to serve a remedial, rather than punitive, purpose.

The language of § 17b-238 (c) strongly suggests that the legislature intended recoupment to be remedial. The subsection consists of two sentences. The language authorizing the department to recoup overpayments is found in the first sentence: “[t]he submission of any false or misleading fiscal information or data . . . shall be grounds for suspension of payments ... in accordance with regulations adopted by [the] commissioner.” The absence of any reference to wrongful intent in that sentence seriously undercuts the defendant’s argument that recoupment is intended to serve apunitive purpose. The fact that recoupment applies to providers who inadvertently submit incorrect information as well as to those who do so with wrongful intent indicates that the legislature intended it to serve a remedial, not a punitive purpose. See Kansas v. Hendricks, 521 U.S. 346, 362, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997) (“[t]he existence of a scienter requirement is customarily an important element in distinguishing criminal . . . statutes”); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963) (tests traditionally applied to determine whether statute serves penal purpose include “whether [the sanction] comes into play only on a finding of scienter”).

Moreover, the language of the implementing regulation, § 17-311-53 (b), also indicates that the legislature intended recoupment to serve a remedial purpose: “Whenever the Commissioner . . . renders a rate decision . . . which decision results in the facility being indebted . . . for past Medicaid overpayments, the department shall recoup said Medicaid overpayments as soon as possible from the department’s monthly Medicaid payments to the facility. . . .” The fact that the amount withheld from providers pursuant to the first sentence of § 17b-238 (c) is merely the amount of debt due to overpayment suggests that the legislature intended recoupment to act as a process for making the state whole rather than as a mechanism for punishing wrongdoers.

Furthermore, the defendant’s reliance on the second sentence of § 17b-238 (c), which imposes criminal liability for “knowingly submitting] false or misleading fiscal information or data” is misplaced. Originally enacted in 1977 as General Statutes § 17-311 (c), what is now § 17b-238 (c) included only the sentence authorizing recoupment. See General Statutes (Rev. to 1979) § 17-311 (c). In 1981, the subsection was amended by adding the sentence imposing criminal liability for knowingly submitting false information. See General Statutes (Rev. to 1983) § 17-311 (c). Nothing in the language of the added second sentence suggests, however, that in amending the subsection, the legislature sought to affect the first sentence. Hence despite the defendant’s assertion to the contrary, the second sentence does nothing to dispel the strong implication arising from the first sentence and its implementing regulation that the legislature did not intend recoupment to serve a punitive purpose.

The legislative history of § 17b-238 (c) also supports our conclusion. The recoupment provision of § 17b-238 (c), formerly § 17-311 (c), was enacted by way of Public Acts 1977, No. 77-593, which also addressed nursing home audits and investigations. The floor debate on House Bill No. 8036, which ultimately became Public Act 77-593, is quite sparse. The defendant maintains that comments made by two legislators, Representative Benjamin N. DeZinno, Jr., and Representative Virginia S. Connolly, indicate that the legislature intended recoupment to serve a punitive purpose. We are unpersuaded. The comments on which the defendant relies are brief, isolated and ambiguous. They do not provide a sufficient basis for concluding that a statute obviously enacted to permit recovery of wrongfully disbursed state funds was designed to serve a punitive purpose.

The legislative history of the second sentence of § 17b-238 (c), which was enacted by way of Public Acts 1981, No. 81-249, buttresses our conclusion. There is nothing in the legislative history of Senate Bill No. 1219, which ultimately became Public Act 81-249, to indicate that the second sentence was necessary to implement the first sentence. To the contrary, the remarks of Senator Howard T. Owens, Jr., during the floor debate suggest that while imposition of criminal liability was designed to serve a punitive purpose, recoupment of overpayments was not. Noting that the bill would criminalize knowingly submitting false or misleading cost reports, and making no reference whatsoever to recoupment, Owens reported to the Senate that “we feel that this penalty is adequate for the crime that might be charged.” (Emphasis added.) 24 S. Proc., Pt. 7, 1977 Sess., p. 2343.

Accordingly, after carefully reviewing the language and legislative history of § 17b-238 (c) and the language of § 17-311-53 (b), we conclude that the legislature intended recoupment to serve a purely remedial purpose, and it served that prnpose in this instance by allowing the department to recover its losses.

B

Our analysis of the recoupment of funds from Winthrop is guided by United States v. Halper, supra, 490 U.S. 435. In Halper, the defendant submitted sixty-five inflated medicare claims, each of which overcharged the government by $9. Convicted of sixty-five separate violations of the federal false claims statute, 18 U.S.C. § 287, the defendant was sentenced to two years imprisonment and fined $5000. Following his criminal conviction, the government brought a successful civil action against the defendant under 31 U.S.C. § 3729, which provided for a $2000 penalty for each violation. Emphasizing the case-specific nature of its inquiry, the Halper court found that the $130,000 civil award was punitive because it was “overwhelmingly disproportionate” to the government’s actual loss. United States v. Halper, supra, 449.

Unlike the sanction at issue in Halper, the department’s recoupment of $450,000 from Winthrop was not punitive. While the amount recovered exceeds the amount of overpayments caused by the defendant’s allegedly fraudulent cost reports; see footnote 10 of this opinion; the disparity, even if not attributed to recoupment of other apparent overpayments, is not great enough to alter the character of the department’s action. “[T]he Government is entitled to rough remedial justice, that is, it may demand compensation according to somewhat imprecise formulas . . . without being deemed to have imposed . . . punishment for the purpose of double jeopardy analysis.” Id., 446. “Leeway is given to achieve ‘rough justice’ when computing the precise amount of damages and costs the government suffered.” United States v. Morgan, 51 F.3d 1105, 1115 (2d Cir. 1995). The amount recovered from Winthrop falls within the bounds of rough justice and is not disproportionate to what the government suffered in damages and expenses and, consequently, did not constitute punishment.

Accordingly, because the legislature intended the recoupment provision of § 17b-238 (c) to serve a remedial, rather than punitive, purpose, and because the department’s recoupment of $450,000 from Winthrop was not excessive, we conclude that the department’s action was not punitive and did not constitute punishment for double jeopardy purposes.

II

The defendant next claims that the department’s action in instructing the receiver not to pay the defendant a salary during the receivership period constituted punishment for purposes of double jeopardy. We disagree for two reasons.

First, the defendant’s claim that the department’s instruction to the receiver served no remedial purpose and, therefore, operated as punishment is a conclusory allegation. The record is completely devoid of evidence regarding the purpose of the department’s instruction.

Second, in light of the trial court’s factual findings and the record, we cannot conclude as a matter of law that, as applied to the defendant, the failure to pay a salary was punitive. The trial court made a finding of fact that during most of the period of receivership, the defendant was under no legal obligation to perform services for Winthrop and simply could have refused to do so. The defendant did, however, have such an obligation during the last weeks of the receivership. That obligation attached when the defendant voluntarily contracted with the department to continue doing Winthrop’s accounts receivables without compensation during the pendency of the sale of the facility to a new owner. At the evidentiary hearing, the defendant acknowledged that he agreed to continue to do the accounts receivable because he wanted the facility to continue to operate and provide services to its residents. Because there is no evidence that the defendant was legally entitled to a salary, we cannot conclude as a matter of law that the failure to pay one was punitive.

Because the record is insufficient as a matter of law to support a conclusion that the department’s action was punitive in purpose or as applied to the defendant, we determine that the trial court properly concluded that the failure to pay him a salary in the weeks preceding the closing of the sale of the Winthrop facility did not constitute punishment for double jeopardy purposes.

III

The defendant further maintains that the restrictive covenant in the medicaid contract forbidding Winthrop’s new owner from doing business with the defendant constituted punishment for purposes of double jeopardy. We disagree.

The record is devoid of evidence of punitive departmental puipose and of evidence that the new owner otherwise would have conducted business with the defendant. Because the record is insufficient as a matter of law to support a conclusion that the restrictive covenant in the contract was punitive in purpose or as applied, we determine that the trial court’s conclusion that it did not constitute punishment was proper.

We conclude, therefore, that under the fifth and fourteenth amendments to the United States constitution, none of the three actions taken by the department constituted punishment for purposes of double jeopardy. The legislature intended recoupment to serve a remedial, rather than punitive, purpose, and the amount recouped from the defendant was not punitive. In addition, there is no evidence that either the withholding of salary from the defendant or the restrictive covenant in the medicaid contract with the new owner was punitive in purpose or in application to the defendant.

IV

We turn now to the defendant’s state constitutional claim. The defendant maintains that the state constitution provides broader protection against double jeopardy than does the federal constitution. In particular, the defendant argues that if an administrative sanction is not exclusively remedial, it constitutes punishment for purposes of state constitutional double jeopardy analysis.

When determining whether our state constitution affords Connecticut citizens greater individual liberties than does its federal counterpart, we consider, to the extent applicable, six factors: (1) the text of relevant constitutional provisions; (2) historical insights into the intent of our constitutional forebears; (3) related Connecticut precedents; (4) persuasive federal precedents; (5) persuasive precedents of other state courts; and (6) contemporary understandings of applicable economic and sociological norms. Washington v. Meachum, 238 Conn. 692, 716, 680 A.2d 262 (1996); State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992). None of those factors supports the defendant’s argument.

First, our state constitution does not contain an express prohibition against double jeopardy. Accordingly, the constitutional text does not support the defendant’s argument.

Second, while we have held that the due process clause of article first, § 9, impliedly incorporates a common-law double jeopardy prohibition; Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298,9 L. Ed. 2d 235 (1962); the absence of an explicit constitutional double jeopardy provision strongly suggests that the incorporated common-law double jeopardy protection mirrors, rather than exceeds, the federal constitutional protection.

Third, nothing in any of the Connecticut cases cited by the defendant undermines that suggestion. In Brazo v. Real Estate Commission, 177 Conn. 515, 525-27, 418 A.2d 883 (1979), we determined that because administrative suspension of the plaintiffs real estate broker’s license was “penal in nature,” the “rule against multiplicity” prohibited multiple suspensions for a single violation. The authorities cited in support of the “rule against multiplicity” are federal, rather than state, materials. Moreover, there is nothing to indicate that our conclusion that the sanction was penal was based on the fact that it was not solely remedial. The case just as plausibly can be read to indicate that the sanction served a purely punitive purpose.

The defendant’s reliance on our characterizations of administrative suspension of various licenses as “penal” in Fitzpatrick's, Inc. v. Commissioner of Motor Vehicles, 165 Conn. 416, 419, 334 A.2d 476 (1973) (automobile dealer’s license), Dental Commission v. Tru-Fit Plastics, Inc., 159 Conn. 362, 365, 269 A.2d 265 (1970) (dental license), and Mack v. Saars, 150 Conn. 290, 294-95, 188 A.2d 863 (1963) (optometry license) is similarly misplaced. There is nothing in any of those cases to indicate that those characterizations, which were made for statutory construction purposes and not for double jeopardy purposes, were based on determinations that the suspensions were not purely remedial. Thus, relevant Connecticut precedent undercuts, rather than supports, the defendant’s argument.

Fourth, relevant federal precedent also undermines his position. While, at the time State v. Hickam, supra, 235 Conn. 614, was decided, there was some controversy as to the effect of language in United States v. Halper, supra, 490 U.S. 435, suggesting that a sanction whose purpose is not purely remedial must be construed as punitive, in United States v. Ursery, 518 U.S. 267, 284-85 n.2, 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996), the United States Supreme Court, concluding as we did in Hickam that the language in question, which contradicts the Halper court’s explicit holding, was dictum, declined to adopt that rule. State v. Hickam, supra, 623.

Fifth, the defendant has not cited, and we are unaware of, any case in which a sister state has adopted the “solely remedial” standard as a matter of independent state constitutional law.

Sixth, the “solely remedial standard” clashes with long-standing judicial acceptance of parallel administrative and criminal proceedings. See, e.g., United States ex rel. Marcus v. Hess, 317 U.S. 537, 554, 63 S. Ct. 379, 87 L. Ed. 443 (1943). “It is hard to imagine a sanction that has no punitive aspect whatsoever.” United States v. Ursery, supra, 518 U.S. 284-85 n.2. Noting that under the proposed standard, a sanction that exhibits even a “minuscule deterrent or retributive purpose” would constitute punishment, in Hickam we explicitly rejected, in the context of the federal double jeopardy protection, the standard advocated by the defendant. State v. Hickam, supra, 235 Conn. 620, 623. Adoption of the “solely remedial” standard would force the state to choose between administrative sanction and criminal prosecution. A standard that prevents the state from seeking criminally to punish conduct that adversely affects the public interest because it has taken administrative action to ameliorate the harm occasioned by that conduct would be an unworkable economic and sociological policy.

Accordingly, we decline to adopt the “solely remedial” standard proposed by the defendant. Sanctions that are not exclusively remedial do not necessarily constitute punishment for state constitutional double jeopardy purposes.

The trial court’s denial of the defendant’s motion to dismiss is affirmed.

In this opinion the other justices concurred.

        The fifth amendment to the United States constitution is made applicable to the states by the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 793-96, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969).

       While there is no explicit prohibition against double jeopardy in the Connecticut constitution, we have held that the due process clause of article first, § 9, impliedly contains such protection. Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962).

       General Statutes § 17b-238 (c), which was formerly General Statutes § 17-311 (c), provides in relevant part: “The submission of any false or misleading fiscal information or data to said commissioner shall be grounds for suspension of payments by the state under sections . . . 17b-340 . . . in accordance with regulations adopted by said commissioner. In addition, any person, including any corporation, who knowingly makes or causes to be made any false or misleading statement or who knowingly submits false or misleading fiscal information or data on the forms approved by the commissioner shall be guilty of a class D felony.”
      Section 17-311-53 of the Regulations of Connecticut State Agencies provides in relevant part:
      “(a) The per diem rate of payment . . . shall be determined by desk review of the submitted annual report ....
      “(b) Whenever the Commissioner of Income Maintenance renders a rate decision . . . which decision results in the facility being indebted ... for past Medicaid overpayments, the department shall recoup said Medicaid overpayments as soon as possible from the department’s monthly Medicaid payments to the facility. ...”

       General Statutes § 53a-122 provides in relevant part: “Larceny in the first degree: Class B felony, (a) A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and: (1) The property or service, regardless of its nature and value, is obtained by extortion, (2) the value of the property or service exceeds ten thousand dollars, (3) the property consists of a motor vehicle, the value of which exceeds ten thousand dollars, or (4) the properly is obtained by defrauding a public community, and the value of such properly exceeds two thousand dollars. . .
      General Statutes § 53a-ll provides: “A person shall be criminally hable for conduct constituting an offense which he performs or causes to be performed in the name of or in behalf of a corporation to the same extent as if such conduct were performed in his own name or behalf.”

       General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to . . .
      “(2) Obtaining property by false pretenses. A person obtains property by false pretenses when, by any false token, pretense or device, he obtains from another any property, with intent to defraud him or any other person. . . .”

       “Colorable claims of double jeopardy are an exception to the general rule that appeals in criminal cases must ordinarily await the final judgment that arises from imposition of sentence.” State v. Aparo, 223 Conn. 384, 386 n.4, 614 A.2d 401 (1992), cert. denied, 507 U.S. 972, 113 S. Ct. 1414, 122 L. Ed. 2d 785 (1993); Abney v. United States, 431 U.S. 651, 659-62, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977).

       Practice Book § 4061 provides in relevant part: “The court may reverse or modify the decision of the trial court if it determines that the factual findings axe clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law. . . .”

       The funds were recouped from Winthrop, a corporation, not from the defendant, the owner of the corporation. Because we decide that the recoupment of funds from Winthrop was not punitive either in purpose or as applied, we need not address the issue of whether the recoupment of funds from Winthrop acted as a sanction against the defendant himself.

       At the time Hickam, was decided, there was some controversy as to the effect of language in Halper suggesting that sanctions whose purpose is not purely remedial (i.e., sanctions that also serve some retributive or deterrent purpose) must be construed as punitive. In United, States v. Ursery, 518 U.S. 267, 284 n.2, 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996), however, the United States Supreme Court, concluding as we did in Hickam that the language in question, which contradicts the Halper court’s explicit holding, was dictum, declined to adopt that rule.

       The amount recouped in this case, $450,000, includes approximately $420,000 attributed to the defendant’s allegedly fraudulent conduct and approximately $30,000 attributed to other overpayments. Those figures were the result of a negotiated agreement between the defendant and the department.

       Public Acts 1977, No. 77-593.

       Public Acts 1981, No. 81-249.

       Representative DeZinno, commented that “this bill would require nursing homes to retain financial and real estate records for specified time periods and to present these records for inspection upon request. It would also provide penalties for failure to retain records and it would allow the State to suspend payment to the nursing homes which intentionally submit false or misleading fiscal data. The intent is to prevent the disappearance or destruction of nursing home records necessary for these audits and the authority to undertake necessary audits and to penalize the failure to maintain and provide essential information [which] would aid the State in its ongoing effort to insure optimum use of public funds.” 20 H.R. Proc, Pt. 13, 1977 Sess., p. 5499.

       Representative Connolly remarked: “I think instead of pointing the finger at any particular nursing home, [the bill] tends to preclude the abuses or pyramiding practices such as has happened in New York or other states around us. I think it’s a good preventative measure and I will support the bill.” 20 H.R. Proc., Pt. 13, 1977 Sess., p. 5501.

       The defendant’s attack on the recoupment of $450,000 is not based on the amount recouped but on the department’s motive for recouping the funds. The defendant maintains that the department recouped the funds in response to pressure from the New England Health Care Employees Union District 1199 and that, therefore, the department’s objective was to punish the defendant. The trial court made a factual finding, however, that the defendant had “not met [the] burden of showing that the [recoupment] was in any way affected by the union pressure or demand.” That finding is supported by the record and is not clearly erroneous. State v. Geisler, supra, 222 Conn. 672. Furthermore, the defendant’s argument that the fact that the department recouped the entire $420,000 at one time, rather than over the course of several months, indicates that the department's objective was to punish the defendant is a conclusory allegation. Because we conclude that the record lacks the factual basis necessary for us to find, as a matter of law, that the department’s motive was punitive, we do not address the issue of whether agency motive is relevant to whether agency action constitutes punishment for purposes of double jeopardy.

       At the evidentiary hearing, the defendant also acknowledged that the department believed that the only way it could ensure recovery of state funds it advanced to the receiver for the purpose of keeping the facility operating during the pendency of the sale to a new owner was to require the defendant to do the billing. At oral argument, the defendant conceded that he had obtained a higher price for the facility than he would have had it not been in operation at the time of the sale.


source: Caselaw Access Project

author: CALLAHAN, C. J.

license: Public Domain

text:
    JUPITER REALTY COMPANY v. BOARD OF TAX REVIEW OF THE TOWN OF VERNON
    (SC 15580)
    Callahan, C. J., and Borden, Berdon, Katz, Palmer, McDonald and Peters, Js.
    Argued June 5
    officially released August 12, 1997

      Stanley Falkenstein, with whom was Julia M. Paul, for the appellant (plaintiff).

      Martin B. Burke, with whom, on the brief, was Dennis M. McManus, for the appellee (defendant).
   Opinion

CALLAHAN, C. J.

The dispositive issue in this appeal is whether, pursuant to General Statutes (Rev. to 1993) §§ 12-111 and 12-117a, a taxpayer can challenge an assessor’s decennial revaluation, conducted pursuant to General Statutes (Rev. to 1991) § 12-62, in an interim year between decennial revaluations. The plaintiff, Jupiter Realty Company, appealed to the Superior Court pursuant to § 12-117a from the refusal of the defendant, the board of tax review of the town of Vernon (board), to reduce the plaintiffs tax assessment on the list of October 1, 1992, on real estate located in Vernon. In its challenge to the board’s refusal to lower the 1992 assessment, the plaintiff claimed that the 1991 revaluation, upon which the 1992 assessment was based, was excessive. During the pendency of the appeal to the Superior Court, the plaintiff amended its appeal, pursuant to § 12-117a, to include the assessments for the years 1993,1994 and 1995. After a trial, the court affirmed the board’s refusal to reduce the assessments for the tax years in question, basing its decision solely on the fact that the plaintiff had not appealed the assessment for the year in which the decennial revaluation had been conducted. The plaintiff appealed from the trial court’s judgment to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We conclude that the trial court improperly determined that in the years intervening between decennial valuations, a taxpayer may not challenge an assessment on the ground that the decennial revaluation overvalued the taxpayer’s property.

The record reveals the following facts. On October 1, 1991, the plaintiff owned a one-story, multitenant, industrial building of approximately 39,316 square feet that was located on a four acre parcel of land in Vernon. On October 1, 1991, as part of a decennial revaluation, the assessor of the town of Vernon valued the plaintiffs property at $1,708,000. Accordingly, the assessed value of the plaintiffs property on the list of October 1,1991, was determined to be $1,195,600. The plaintiff did not appeal this assessment. In 1992, on the basis of the 1991 decennial revaluation, the assessor again determined the assessed value of the plaintiffs property to be $1,195,600. The plaintiff appealed the 1992 assessment to the board, which refused to reduce the assessment. The trial court affirmed the board’s decision.

In its memorandum of decision, the trial court presented three reasons for its conclusion that during the intervening years between decennial revaluations, a property owner may not appeal the refusal of a board of tax review to reduce the assessment on the owner’s property on the ground that the decennial revaluation was excessive. First, the trial court determined that mandatory language in § 12-62 insulates assessors from claims for reduced assessments during the years between decennial revaluations. Second, the trial court concluded that the plaintiffs claim was barred by our precedent interpreting the parameters of mandatory and permissive interim revaluations. Third, the trial court reasoned that the plaintiff had not exercised its statutory right to appeal in a timely fashion. Thus, the trial court did not reach the merits of the plaintiffs claim that the assessments at issue in this case, which were based upon the 1991 decennial revaluation, were excessive. See Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 525 A.2d 91 (1987).

On appeal, the plaintiff contends that neither § 12-62 nor any other statutes bearing on tax appeals preclude a property owner from bringing an appeal that challenges the decennial revaluation in a year subsequent to the revaluation year. In addition, the plaintiff argues that the cases relied upon by the trial court for the proposition that appeals cannot be taken to reduce assessments in the inteivening years between decennial revaluations are not applicable to this case. We agree.

The board offers the same arguments relied on by the trial court in its memorandum of decision dismissing the plaintiffs appeal, namely: (1) that the mandatory language in § 12-62 insulates assessors from claims for reduced assessments during the years between decennial revaluations; (2) that the plaintiffs appeal is barred by several of our previous cases interpreting the parameters of mandatory and permissive interim revaluations; and (3) that the plaintiffs appeal was not timely. We are not persuaded.

I

We first address the board’s contention that certain mandatory language in § 12-62 bars the plaintiff from challenging the 1991 revaluation in any year other than the year of revaluation. Our analysis of whether § 12-62 insulates boards of tax review from appeals for overvaluations during the years between decennial revaluations is guided by well established principles of statutory construction. “Statutory construction is a question of law and therefore our review is plenary.” Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1211 (1995). “[O]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) State v. Burns, 236 Conn. 18, 22-23, 670 A.2d 851 (1996); see also State v. Spears, 234 Conn. 78, 86-87, 662 A.2d 80 (1995).

The first sentence of § 12-62 (a) requires assessors to revalue property every ten years. See footnote 2 of this opinion. The second sentence of § 12-62 (a) provides: “The assessments derivedfrom each such revaluation shall be used for the purpose of levying property taxes in such municipality in the assessment year in which such revaluation becomes effective and in each assessment year thereafter until the next succeeding revaluation in accordance with this section becomes effective.” (Emphasis added.) The board contends that the mandatory language “shall be used” nullifies a taxpayer’s ability to challenge the assessor’s decennial revaluation in years between decennial revaluations. The board concedes, however, that an appeal in the year of the decennial revaluation is permissible. The board’s interpretation of § 12-62, therefore, would have its mandatory language bar only those appeals that challenge revaluations subsequent to the year of the decennial revaluation. If we are to interpret the effect of the mandatory language in § 12-62 consistently, however, we must either bar all appeals that challenge decennial revaluations, or we must allow a taxpayer to challenge a decennial revaluation whenever it is used as the basis for a yearly assessment. We conclude that the latter interpretation is the more logical in view of: (1) the history of § 12-62, its chronological relationship to the tax appeal statutes, and the public policy behind tax appeals; (2) the uniform understanding of the tax appeals statutes as held by those charged with cariying out the statutes’ mandates and by those who litigate and adjudicate tax appeals; (3) the bizarre and unacceptable results that would ensue if we were to adopt the board’s position; and (4) our decision in Carol Management Corp. v. Board of Tax Review, 228 Conn. 23, 633 A.2d 1368 (1993), in which we considered and upheld a subsequent challenge to a decennial revaluation.

The decennial revaluation statute originally was enacted as Public Acts 1917, c. 214, in substantially the same form as it exists today in § 12-62. Because of the year of its enactment, we have no legislative history for Public Acts 1917, c. 214. We are aware, however, that when it was enacted, the statutes permitting the appeal of local tax assessments were already in place. “It is a basic tenet of statutoiy construction that the intent of the legislature is to be found not in an isolated phrase or sentence but, rather, from the statutory scheme as a whole.” State v. Breton, 235 Conn. 206, 226, 663 A.2d 1026 (1995).

The first statutory right of a taxpayer-to appeal from an assessor’s doings was enacted in October, 1737. We know, therefore, that for 190 years prior to the legislature’s requiring decennial revaluations, a statutory right existed for taxpayers to appeal annual assessments. This long-standing history of the right to appeal annual assessments evidences a public policy in favor of allowing taxpayers to question those charged with assessing property for taxation purposes. “A statute should be interpreted according to the policy which the legislation seeks to serve.” Aaron v. Conservation Commission, 183 Conn. 532, 538, 441 A.2d 30 (1981). The board’s interpretation of § 12-62, however, would have that statute substantially limit this right by excluding for appeal purposes any challenge- to a decennial revaluation not brought the first year the revaluation was used for assessment purposes. We decline to read into § 12-62 such a circumscription of the well established statutory right to appeal property tax assessments without any legislative indication that such a significant result was intended. State v. Cobb, 234 Conn. 735, 750, 663 A.2d 948 (1995) (“[w]e will not infer that the legislature intended to enact a significant change in existing law without an unequivocally expressed manifestation of legislative intent” [internal quotation marks omitted]).

The uniform understanding among assessors, town counsel, boards of tax review and real estate tax attorneys also supports our reading of § 12-62. We have recognized that an established practice, particularly that of public officers charged with carrying out the provisions of a statute, may be cogent evidence of the intent manifested in that statute. See Institute of Living v. Hartford, 133 Conn. 258, 267, 50 A.2d 822 (1946); Sav ings Bank of Rockville v. Wilcox, 117 Conn. 188, 194, 167 A. 709 (1933). It was conceded by the board at oral argument that before the trial court’s decision in this case, the statute’s “audience” — assessors, town counsel, boards of tax review and real estate tax attorneys— believed that a challenge to a decennial revaluation in a subsequent year was permissible. This common understanding among those who are guided by the tax appeal statutes buttresses our conclusion that § 12-62 does not bar the plaintiffs appeal. See State v. Piorkowski, 236 Conn. 388, 408, 672 A.2d 921 (1996) (understanding by likely intended audience of statute is guide to statutory meaning).

Additionally, we decline to read our statutes so as to limit appeals of allegedly inaccurate valuations to the year of the revaluation because such a rule would generate severe inequities. King v. Board of Education, 203 Conn. 324, 332-33, 524 A.2d 1131 (1987) (“courts will assume that the legislature intended to accomplish a reasonable and rational result” [internal quotation marks omitted]). For example, assume that an assessor, as part of a decennial revaluation, values certain real estate excessively. The owner, for reasons of his or her own, chooses not to challenge the assessment. Three years later, the owner conveys the real estate. Under the trial court’s interpretation of § 12-62, the transferee would be unable to challenge the decennial revaluation and would have to pay taxes based on excessive assessments for seven more years with no avenue of relief. Such a result would be unacceptable.

Moreover, we have affirmed a decision of the trial court that allowed a taxpayer to challenge a decennial revaluation in a subsequent year. In Carol Management Corp. v. Board of Tax Review, supra, 228 Conn. 23, the taxpayer had appealed the 1984 assessment of its property, a six story brick apartment building located in Greenwich. The decennial revaluation that served as the basis for this assessment was performed in 1979 and resulted in a fair market value determination of $3,296,300 and an assessed value of $2,307,410. “In addressing the merits of the plaintiff’s claim, the court found that there was no reasonable probability that the plaintiffs building would be converted to condominium use, and concluded, therefore, contrary to the claim of the defendant’s appraiser, that the highest and best use of the plaintiffs property was its actual use as rental apartments. The court also found that the comparable sales method, the preferred method for valuing rental property under General Statutes § 12-63b, was the proper method of appraisal. The court accepted the opinion of the plaintiffs appraiser that the fair market value of the property was $2,400,000, rather than $3,296,300.” Id., 28-29. In that case, the trial court found, in ruling on the 1985 appeal, that the 1979 decennial revaluation was excessive. We affirmed the judgment of the trial court, implicitly acknowledging that such a challenge was permissible.

On the basis of the foregoing considerations, we conclude as a matter of statutory construction that § 12-62 does not insulate boards of tax review from appeals from overvaluation during the years between decennial revaluations.

II

We next turn to the board’s claim that our previous case law precludes the plaintiffs appeal. The board cites Ralston Purina Co. v. Board of Tax Review, supra, 203 Conn. 435-39, for the proposition that “assessors are not required to make interim revaluations based on market fluctuations in the absence of particular circumstances.” The board then contends: “the plaintiff is attempting to challenge the 1991 revaluation by challenging the assessments on Grand Lists (which are based on the 1991 revaluation) in successive years. In effect, the plaintiff is asking for an interim revaluation because it is asking for the valuation to be adjusted in a tax year following the revaluation. The relief the plaintiff is seeking is tantamount to a request for an interim revaluation . . . .” The question, then, is whether the plaintiffs challenge to the 1991 decennial revaluation brought in response to the 1992 assessment, which was based on the 1991 revaluation, is, for the purposes of the precedent in Ralston Purina Co., an. interim revaluation. We conclude that it is not.

The distinction between requesting a revaluation because the original revaluation was in error and requesting a revaluation because circumstances subsequent to the initial revaluation have effected a change in the present true and actual value of the property is identifiable and justifiable. Simply, a request for an interim revaluation seeks a new revaluation as of the present date because of altered conditions since the latest revaluation. In Uniroyal, Inc. v. Board of Tax Review, 182 Conn. 619, 629, 438 A.2d 782 (1981), in which we reviewed a request for an interim revaluation, we concluded that “[t]he remedy of revaluation was established by the legislature and it was the judgment of the legislature that the remedy need only be available once each decade.” A request for an interim revaluation, therefore, is brought because the decennial revaluation is allegedly outdated, and is, in essence, a challenge to the legislatively chosen ten year revaluation time period.

Conversely, a challenge to the decennial revaluation in a subsequent year seeks only to correct an already existing revaluation. It is a challenge to the manner of taxation; id.; and is brought to question the performance of the assessor’s duties under General Statutes § 12-64. Ralston Purina Co. v. Board of Tax Review, supra, 203 Conn. 434. We find no support for denying taxpayers the right to have their decennial revaluation reflect the property’s true value at the time of the decennial revaluation in our case law concerning interim valuations. While the ultimate relief of interim revaluations and challenges to decennial revaluations might be similar— a lowering of present and future assessment values— the grounds for relief axe quite distinct.

Ill

Last, the board claims that the tax appeals statutes themselves bar the plaintiffs action because the time during which the plaintiff could challenge the decennial revaluation of October 1, 1991, has passed. The board, however, misreads the appeals statutes in reaching this conclusion. Section 12-111 provides that “[a]ny person . . . claiming to be aggrieved by the doings of the assessors of such town may appeal therefrom to such board of tax review . . . .” See footnote 1 of this opinion. The specific “doing of the assessor” from which the plaintiff appealed was the 1992 yearly assessment and not the decennial revaluation. Any time bar to this action; see General Statutes (Rev. to 1993) §§ 12-111 and 12-117a; therefore, must use as its initial reference point the 1992 assessment and not the decennial revaluation. The fact that the decennial revaluation is the basis of the yearly assessments; see footnote 2 of this opinion; is of no consequence to the question of whether the appeal was taken timely.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1993) § 12-111 provides in relevant part: “[A]ny person, including any lessee of real property whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes and any person to whom title to such property has been transferred since the assessment date, claiming to be aggrieved by the doings of the assessors of such town may appeal therefrom to such board of tax review . . . .”
      General Statutes (Rev. to 1993) § 12-117a provides in relevant part: “[A]ny person, including any lessee of real property whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, claiming to be aggrieved by the action of the board of tax review in any town or city with respect to the assessment list for the assessment year commencing October 1, 1989, October 1, 1990, October 1, 1991, or October 1, 1992, may, within two months from the time of such action, make application, in the nature of an appeal therefrom, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court. . . .”

       General Statutes (Rev. to 1991) § 12-62 provides in relevant part: “(a) Commencing October 1,1991, the assessors of all towns, consolidated towns and cities and consolidated towns and boroughs shall, no later than ten years following the effective date of the last preceding revaluation of all real property and every ten years thereafter, revalue all of the real estate in their respective municipalities for assessment purposes, in accordance with the provisions of subsection (b) of this section. The assessments derived from each such revaluation shall be used for the purpose of levying property taxes in such municipality in the assessment year in which such revaluation becomes effective and in each assessment year thereafter until the next succeeding revaluation in accordance with this section becomes effective. . . .”

       General Statutes (Rev. to 1993) § 12-117a provides in relevant part: “If, during the pendency of such appeal, a new assessment year begins, the applicant may amend his application as to any matter therein, including an appeal for such new year, which is affected by the inception of such new year and such applicant need not appear before the board of tax review, as the case may be, to malte such amendment effective. . . .”

       General Statutes (Rev. to 1991) § 12-62a (b) provides: “Each such municipality shall, no later than the close of its next revaluation required under the provisions of section 12-62, assess all property for purposes of the local property tax at a uniform rate of seventy per cent of present true and actual value, as determined under section 12-63.”

       The plaintiff does not claim that any possible reduction in the decennial revaluation resulting from this appeal should be applied to reduce any assessment from which it did not appeal, i.e., the 1991 assessment.

       Public Acts 1917, c. 214, provides in relevant part: “The assessors of all towns, consolidated towns and cities, and consolidated towns and boroughs, unless otherwise provided, shall, on or before February 1, 1920, and during each period of ten years thereafter, view all of the real estate of their respective municipalities, and shall revalue the same for assessment, and in the performance of these duties at least two of the assessors shall act together and all valuations shall be separately approved by a majority of the assessors.” We note that the mandatory language relied on by the board was not a part of the original enactment of the statute.

       General Statutes (1808 Rev.) tit. CII, c. 1, § 4, provides in relevant part: “But if such listers will not give just relief, then upon application made by the aggrieved party to two or more justices of the peace and three selectmen of the town, or to a. majority of the civil authority and selectmen of such town qualified by law to judge in such case, notifying two or more of the listers to shew reasons if any they have, why relief should not be granted to such aggrieved person, they shall consider the case and give such relief as they shall judge just and reasonable; and also in all cases where any person may be wrongly charged, or over charged, either by way of assessment or otherwise, by the listers, in their list as aforesaid . ...” A footnote to this section indicates that it was first passed in October, 1737.

       The board also cites Pauker v. Roig, 232 Conn. 335, 654 A.2d 1233 (1995), 84 Century Ltd. Partnership v. Board of Tax Review, 207 Conn. 250, 541 A.2d 478 (1988), and Uniroyal, Inc. v. Board of Tax Review, 182 Conn. 619, 438 A.2d 782 (1981), in its summary of our case law on mandatory and permissive revaluations. None of those cases changes our view.


author: KATZ, J.

text:
    DARRELL DODD v. MIDDLESEX MUTUAL ASSURANCE COMPANY
    (SC 15398)
    Borden, Norcott, Katz, McDonald and Peters, Js.
    Argued December 4, 1996
    officially released August 12, 1997

      Louis N. George, with whom were John S. Rubrich and, on the brief, David Garofoli, legal intern, for the appellant (intervening plaintiff).

      Jon Berk, for the appellee (defendant).
   Opinion

KATZ, J.

At issue in this appeal is whether Genera Statutes (Rev. to 1993) § 31-293' (a), which authorizes employers who have made workers’ compensation payments to employees injured by a third party to take action to recover those payments from that third party, entitles an employer to make such a claim against any recovery the employee may be due under the employee’s own uninsured motorist provision of his or her automobile insurance policy. We conclude that any amounts an employee may receive from his or her uninsured motorist coverage are not within the reach of § 31-293 (a), and, therefore, that the employer has no right to recovery from those funds.

The facts are undisputed. The plaintiff, Darrell Dodd, was at all times pertinent to this case an employee of the appellant, Eddie’s Evergreen Mobil Service (Evergreen). On December 12, 1993, Dodd was seriously injured when the car he was driving was struck by another car that was unregistered, uninsured and bore stolen license plates. Because at the time of the accident Dodd was acting within the course of his employment, Evergreen was obligated to pay, and did pay, workers’ compensation to Dodd. General Statutes § 31-291 etseq. In order to recover for losses not covered by workers’ compensation, Dodd initiated this action against the defendant, Middlesex Mutual Assurance Company, from whom he had purchased an automobile insurance policy that included uninsured motorist coverage.

On October 10, 1993, relying on § 31-293, Evergreen filed a motion to intervene in Dodd’s action, along with an intervening complaint seeking reimbursement of workers’ compensation paid to Dodd. The trial court, Holzberg, J., granted Evergreen’s motion to intervene, whereupon the defendant, claiming that an employer has no right to reimbursement from uninsured motorist benefits, filed a motion to strike the intervening complaint for failure to state a cause of action. The defendant’s motion was granted, and this appeal followed.

“The function of a, motion to strike is to test the legal sufficiency of a pleading; it admits all facts well pleaded. See Practice Book § 152. The role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action.” Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232-33, 680 A.2d 127 (1996). In this case, the issue is whether the facts as pleaded by Evergreen support a cause of action under § 31-293 (a). Evergreen claims that § 31-293 (a), which allows an employer seeking to recover workers’ compensation payments made to an injured employee to institute an action or to intervene in an action arising from “circumstances creating in a third person other than the employer a legal liability to pay damages for the injury,” applies to payments made pursuant to an uninsured motorist provision. Specifically, Evergreen asserts that because an insurance carrier, like the defendant, has agreed to pay its insured damages he or she would otherwise have received from an adequately insured tortfeasor, and because the insurance carrier may assert the same defenses as the tortfeasor, the defendant in this case has, in effect, stepped into the shoes of the tortfeasor and is therefore subject to the strictures of § 31-293 (a). The defendant responds by arguing that the statute was enacted to protect employers from having to pay workers’ compensation when an employee’s injury was caused by a tortfeasor from whom damages may be recovered, and not to provide access to payments made to the employee under the employee’s own uninsured motorist provision. The defendant argues that payments under such a provision are contractual benefits arising from a first party contract between an insurer and its insured, and “damages” are involved only to the extent that the insured’s injuries, or damages, are the basis upon which the insurance benefits are calculated. We agree with the defendant that § 31-293 (a) does not apply to uninsured motorist coverage.

When we set out to interpret the meaning of a statute, “[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Conway v. Wilton, 238 Conn. 653, 663, 680 A.2d 242 (1996). Furthermore, “[w]hen a statute is in derogation of common law or creates a [right] where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of [statutory] construction. ... In determining whether or not a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope.” (Citation omitted; internal quotation marks omitted.) Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 289-90, 627 A.2d 1288 (1993).

We begin with the language of the statute. Section 31-293 (a) allows an employer to take action against a “third person” who is legally liable to pay “damages” for an injury to an employee. Evergreen asserts that § 31-293 (a) applies to the defendant because, as the plaintiffs uninsured motorist insurance carrier, the defendant is a “third person” who has a legal liability to pay “damages.” In response, the defendant argues that it is not a third person as contemplated by the statute and that any payments made by it to the plaintiff are not damages, but simply the benefits of a first party contract between the plaintiff and the defendant for which the plaintiff has paid a premium. Both parties find support for their arguments in the language of the statute, the state insurance regulations and the uninsured motorist provision itself. We conclude that although the definitional difference between “damages” and “benefits” may be relevant to an understanding of the parties’ positions, the outcome of this case is determined not by definitions but by an examination of the purpose of workers’ compensation, the policy reasons for allowing an employer, in certain circumstances, to recoup compensation payments, and the nature of an insurance policy.

Connecticut first adopted a statutory scheme of workers’ compensation in 1913. “The purpose of the Workers’ Compensation Act [act]; General Statutes § 31-275 et seq.; is to provide compensation for injuries arising out of and in the course of employment, regardless of fault. Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968). Under the statute, the employee surrenders his right to bring a common law action against the employer, thereby limiting the employer’s liability to the statutory amount. Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979).” Lynn v. Haybuster Mfg., Inc., supra, 226 Conn. 297. In return, the employee is compensated for his or her losses without having to prove liability. 1 A. Larson & L. Larson, Workmen’s Compensation (1997) § 1.10, pp. 1-1 through 1-2. “ ‘In a word, these statutes compromise an employee’s right to a common law tort action for work related injuries in return for relatively quick and certain compensation.’ Mingachos v. CBS, Inc., 196 Conn. 91, 97, 491 A.2d 368 (1985).” Lynn v. Haybuster Mfg., Inc., supra, 297.

Chapter 138, part B, § 6, of the 1913 Public Acts provided in relevant part: “When any injury for which compensation is payable under this act shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto . . . any employer having paid the compensation shall be subrogated to the rights of the injured employee to recover against that person . . . .” That provision was subsequently amended, removing the reference to subrogation and substituting language allowing an employer either to intervene in an action brought by an employee or to bring its own direct action against a third party. See Public Acts 1917, c. 368, § 1. The language of the 1917 act is virtually identical to that of the current § 31-293 (a), the application of which is at issue in this case.

This statutory right of action, allowing a person other than the injured party to bring an action for an injury, did not exist at common law. “Under common law a cause of action for personal injuries cannot be assigned, and in the absence of a statutory provision to the contrary a right of action for personal injuries resulting from negligence- is not assignable before judgment. 6 Am. Jur. 2d 220, Assignments, § 37. The rule is succinctly stated in the Restatement, 2 Contracts § 547 (1) (d): ‘An assignment of a claim against a third person or a bargain to assign such a claim is illegal and ineffective if the claim is for . . . (d) damages for an injury the gist of which is to the person rather than to property, unless the claim has been reduced to judgment.’ The annotation, ‘Assignability of claim for personal injury or death,’ 40 A.L.R.2d 500, 502 § 3, has noted: ‘It seems that few legal principles are as well settled, and as universally agreed upon, as the rule that the common law does not permit assignments of causes of action to recover for personal injuries.’ See cases therein cited. The rule was early recognized in Connecticut. See Whitaker v. Gavit, 18 Conn. 522, 526 [1847]. The reasons underlying the rule have been variously stated: unscrupulous interlopers and litigious persons were to be discouraged from purchasing claims for pain and suffering and prosecuting them in court as assignees; actions for injuries that in the absence of statute did not survive the death of the victim were deemed too personal in nature to be assignable; a tort-feasor was not to be held liable to a party unharmed by him; and excessive litigation was thought to be reduced. Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S. Ct. 134, 72 L. Ed. 290 [1927]; Rice v. Stone, 83 Mass. [1 Allen] 566 [1861]; note, 40 A.L.R.2d500.”Berlinski v. Ovellette, 164 Conn. 482, 485-86, 325 A.2d 239 (1973), overruled on other grounds, Westchester Fire Ins. Co. v. Allstate Ins. Co., 236 Conn. 362, 375, 672 A.2d 939 (1996).

The ability of someone other than the injured party, e.g., the employer, to bring or to intervene in an action against a third party is a clear deviation from the common law. Iseli Co. v. Connecticut Light & Power Co., 211 Conn. 133, 137, 558 A.2d 966 (1989). Consequently, this statutory grant of right must be strictly construed and limited to those matters clearly within its scope. Lynn v. Haybuster Mfg., Inc., supra, 226 Conn. 289.

In 1913, when the act was first passed, an action in tort was the only action available to an employee who had been injured on the job. Under the act, an injured employee could no longer sue his or her employer, however, the employee retained the right to bring an action against a third party having “a legal liability.” Uninsured motorist coverage was not in existence at that time and it is not likely that the legislature had any such insurance in mind when preserving that right. It is equally unlikely that the legislature contemplated uninsured motorist coverage when creating the employer’s right of recovery in third party actions. Rather, it is reasonable to assume that the legislature intended that section of the act to apply to a traditional tort action against a wrongdoer. This construction of the act is consistent with prior decisions by this court interpreting the terms “third party” and “third person” as referring to the actual tortfeasor. See Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 537, 582 A.2d 1174 (1990) (§ 31-293 read to allow employers to intervene in actions against tortfeasors); Stavola v. Palmer, 136 Conn. 670, 677-78, 73 A.2d 831 (1950) (right of reimbursement based on theory that employer has satisfied obligation “which was primarily the obligation of the tortfeasor”); Stulginski v. Cizauskas, 125 Conn. 293, 298, 5 A.2d 10 (1939) (statute allowing reimbursement applies “to any other third party who commits such a tort”); Geraty v. Kaufman, 115 Conn. 563, 568, 162 A. 33 (1932) (referring to statutory third person as “wrongdoer”). It is also consistent with the statutory assignment. By allowing the employer to take action in order to recover the workers’ compensation benefits it was legally obligated to pay to its injured employee, the act ensured that, as in an action in tort, the ultimate loss fell upon the wrongdoer. 6 A. Larson & L. Larson, supra, §§ 71.00 — 71.10, pp. 14-1 through 14-4.

An action to recover under an automobile insurance policy is not an action in tort but, rather, an action in contract. “The obligation of [an] insurance carrier providing uninsured motorist coverage as a part of its liability insurance coverage on the automobile of the insured person is a contractual obligation arising under the policy of insurance. . . . State Farm Mutual Automobile Ins. Co. v. Board of Regents of the University System of Georgia, 226 Ga. 310, 311, 174 S.E.2d 920 (1970). Payments made pursuant to an uninsured motorist policy are paid on behalf of the insured, and not on behalf of the financially irresponsible motorist who has caused the insured’s injuries. Pecker v. Aetna Casualty & Surety Co., 171 Conn. 443, 452, 370 A.2d 1006 (1976).” (Emphasis in original; internal quotation marks omitted.) Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 817, 695 A.2d 1010 (1997).

Evergreen acknowledges the contractual nature of the plaintiffs action under his policy but nevertheless contends that, by virtue of the insurance contract, the defendant has stepped into the shoes of the tortfeasor. We disagree. We do not believe that the facts and circumstances of this case warrant such a result. As a general rule, “[t]he insurer is not the alter ego of the tortfeasor and, although its contractual liability is premised in part on the contingency of the tortfeasor’s liability, they do not share the same legal [status].” Id. Before an insurance carrier may be required to perform under the uninsured motorist provision of its contract with an insured, there must be proof of a causal connection between the insured’s injuries and the actions of an inadequately insured motorist. Travelers Ins. Co. v. Kulla, 216 Conn. 390, 398, 579 A.2d 525 (1990). Thus, the insurer cannot be deemed a “third party” under the statute, because that is the position held by the actual tortfeasor; moreover, the mere fact that the insurer’s obligation to the insured is measured by the damages caused by the tortfeasor does not, of itself, transform the insurer into a surrogate for the tortfeasor for the purposes of § 31-293 (a).

Our conclusion is consistent with the majority view. See 6 A. Larson & L. Larson, supra, § 71.23 (a), pp. 14-28 through 14-33; see also Commissioners of the State Ins. Fund v. Miller, 4 App. Div. 2d 481, 482, 166 N.Y.S.2d 777 (1957) (“[The] insurer cannot, however, be deemed the alter ego of the tort feasor. It does not insure the tort feasor against liability; it insures its policyholder against the risk of inadequate compensation for his compensable injuries. Its liability ... is contractual, although premised in part upon the contingency of a third party’s tort liability.”). Accord Knight v. Ins. Co. of North America, 647 F.2d 127 (10th Cir. 1981); Holmes v. Washington Metropolitan Area Transit Authority, 731 F. Sup. 1115 (D.D.C. 1990); Allied Mutual Ins. Co. v. Larriva, 19 Ariz. App. 385, 507 P.2d 997 (1973); Travelers Ins. Co. v. National Farmers Union Property & Casualty Co., 262 Ark. 624, 480 S.W.2d 585 (1972); State Compensation Ins. Fund v. Gulf Ins. Co., 628 P.2d 182 (Colo. App. 1981); Volk v. Gallopo, 585 So. 2d 1163 (Fla. App. 1991); State Farm Mutual Automobile Ins. Co. v. Board of Regents of the University System of Georgia, supra, 226 Ga. 310; March v. Pekin Ins. Co., 465 N.W.2d 852 (Iowa 1991); Janzen v. Land O’ Lakes, 278 N.W.2d 67 (Minn. 1979); Barker v. Palmarin, 799 S.W.2d 117 (Mo. App. 1990); Commissioners of the State Ins. Fund v. Miller, supra, 481; Hartford Accident & Indemnity Co. v. Glickman, 84 Misc. 2d 33, 374 N.Y.S.2d 566 (1975); Bill Hodges Truck Co. v. Humphrey, 704 P.2d 94 (Okla. App. 1984); Rhodes v. Automotive Ignition Co., 218 Pa. Super. 281, 275 A.2d 846 (1971); Southeast Furniture Co. v. Barrett, 24 Utah 2d 24, 465 P.2d 346 (1970).

We find further support for the position that an insurer is not a third party under § 31-293 (a) in the fact that when the legislature last revisited § 31-293, it took no action to amend the statute to reflect the reality that uninsured motorist coverage is now mandatory for all automobile insurance policies issued in this state. See Public Acts 1996, No. 96-65, § 2. “The legislature is presumed to be aware and to have knowledge of all existing statutes and the effect which its own action or nonaction may have on them.” Windham First Taxing District v. Windham, 208 Conn. 543, 554, 546 A. 2d 226 (1988). Furthermore, the legislature failed to amend § 31-293 (a) despite past decisions by this court using the terms “third party” and “tortfeasor” interchangeably. See Winslow v. Lewis-Shepard, Inc., supra, 216 Conn. 533; Stavola v. Palmer, supra, 136 Conn. 670; Stulginski v. Cizauskas, supra, 125 Conn. 293; Geraty v. Kaufman, supra, 115 Conn. 563. It is a basic tenet of statutory construction that “the legislature is presumed to be aware of the judicial construction placed upon its enactments.” Lumbermens Mutual Casualty Co. v. Huntley, 223 Conn. 22, 30, 610 A.2d 1292 (1992). We conclude, therefore, that the legislature could not have intended that § 31-293 (a) should apply to uninsured motorist coverage.

Evergreen has argued that if § 31-293 (a) does not apply to actions to recover uninsured motorist benefits, injured employees may receive a double recovery in that they could receive workers’ compensation as well as the full amount due under their uninsured motorist policies. Indeed, § 31-293 was enacted in part to prevent such double recovery. Gurliacci v. Mayer, 218 Conn. 531, 576, 590 A.2d 914 (1991). The defendant argues in response that there would be no double recovery because § 38a-334-6 of the Regulations of Connecticut State Agencies allows an insurer to insert a provision in its contract with the insured mandating a setoff equal to any amounts paid to the insured by way of workers’ compensation, thereby preventing double recovery by the employee. This regulatory setoff was approved by this court in Wilson v. Security Ins. Co., 213 Conn. 532, 569 A.2d 40, cert. denied, 498 U.S. 814, 111 S. Ct. 52, 112 L. Ed. 2d 28 (1990), cert. denied, 502 U.S. 1005, 112 S. Ct. 640, 116 L. Ed. 2d 658 (1991), and has the force and effect of a statute. Travelers Ins. Co. v. Kulla, supra, 216 Conn. 399.

Evergreen argues, nevertheless, that public policy against double recovery requires that § 31-293 apply whenever the employer seeks reimbursement. If that were true, however, the result would be that in a case involving the uninsured motorist provision of an insurance policy containing the setoff provision the injured employee would be subject to a double deduction. Evergreen attempts to avoid this possibility by arguing that § 31-293 would control in such a case, and that the insurance policy setoff provision would be inoperative. Under this interpretation, the regulatory right of setoff would apply only in that rare instance when the employer has chosen not to invoke § 31-293. More often than not, this would render the regulation superfluous. “Elementary rules of statutory construction require the presumption that the legislature [does] not intend to enact superfluous legislation.” State v. Ellis, 197 Conn. 436, 472-73, 497 A.2d 974 (1985).

Rather than adopt Evergreen’s reading of these statutory and regulatory provisions to create a genuine conflict that would result in a nullification of one by the other, as a reviewing court we should seek to harmonize the legislation so as to avoid conflict. Shortt v. New Milford Police Dept., 212 Conn. 294, 301, 562 A.2d 7 (1989). “Where, as here, more than one [provision] is involved, we presume that the legislature intended them to be read together to create a harmonious body of law; Vartuli v. Sotire, 192 Conn. 353, 362, 472 A.2d 336 (1984); McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 563 n.7, 473 A.2d 1185 (1984); and we construe the [provisions], if possible, to avoid conflict between them. State v. West, 192 Conn. 488, 494, 472 A.2d 775 (1984); Blue Cross & Blue Shield of Connecticut, Inc. v. Mike, 184 Conn. 352, 362, 439 A.2d 1026 (1981).” Berger v. Tonken, 192 Conn. 581, 589-90, 473 A.2d 782 (1984). We achieve this harmonization by reading § 31-293 (a) and § 38a-334-6 (d) (2) together to further the legislative purpose that an injured employee be compensated as fully as possible, but not doubly compensated, for his or her injuries while ensuring that the employer retains the right to proceed against a wrongdoer to recover workers’ compensation payments made to the employee. Section 31-293 (a), properly construed, applies only to third party tort actions between an injured party and a wrongdoer, while the insurance regulation, properly construed, applies only to first party contract actions between the insurer and the insured. Thus, there is no opportunity for conflict.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1993) § 31-293 (a) provides: “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. The rendition of a judgment in favor of the employee or the employer against the third party shall not terminate the employer’s obligation to make further compensation which the commissioner thereafter deems payable to the injured employee. If the damages, after deducting the employee’s expenses as provided in this subsection, are more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse him for his claim, and the excess shall be assessed in favor of the injured employee. No compromise with the third person by either the employer or the employee shall be binding upon or affect the rights of the other, unless assented to by him. For the purposes of this section, the claim of the employer shall consist of (1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of the injury. The word ‘compensation’, as used in this section, shall be construed to include incapacity payments to an injured employee, payments to the dependents of a deceased employee, sums paid out for surgical, medical and hospital services to an injured employee, the burial fee provided by subdivision (1) of subsection (a) of section 31-306, payments made under the provisions of sections 31-312 and 31-313, and payments made under the provisions of section 31-284b in the case of an action brought under this section by the employer or an action brought under this section by the employee in which the employee has alleged and been awarded such payments as damages.”

       Although Dodd did not file a brief in this appeal, he notified this court that he supported the position of the defendant.

       Evergreen 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).

         Evergreen relies on the fact that the word “damages” is often used in court decisions and insurance policies when referring to amounts owed to an insured by an insurer to support its argument that the defendant is liable for damages as that term is used in § 31-293 (a). The defendant offers this court’s decisions in Smith v. Safeco Ins. Co. of America, 225 Conn. 566, 624 A.2d 892 (1993), and Bodner v. United, Services Automobile Assn., 222 Conn. 480, 610 A.2d 1212 (1992), to support its argument that money paid pursuant to an uninsured motorist provision is a benefit not to be equated with damages. Smith v. Safeco Ins. Co. of America, supra, 570.

       See Public Acts 1913, c. 138, entitled “An Act concerning Compensation to Workmen injured in the Course of their Employment.”

       See footnote 1 of this opinion.

       Section 38a-334-6 of the Regulations of Connecticut State Agencies provides in pertinent part: “(d) Limits of liability. The limit of the insurer’s liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of section 14-112 of the general statutes, except that the policy may provide for the reduction of limits to the extent that damages have been ... (2) paid or are payable under any workers’ compensation or disability benefits law . . . .”

       We note that nothing in this opinion, § 31-293 (a) or § 38a-334-6 prevents an employer from initiating an action of its own against the actual third party tortfeasor even though the employee has chosen to look to his or her uninsured motorist insurance carrier for recovery. See Libby v. Goodwin Pontiac-GMC Truck, Inc., 241 Conn. 170, 175-76, 695 A.2d 1036 (1997).