source: Caselaw Access Project

author: VERTEFEUILLE, J. NORCOTT, J.,

license: Public Domain

text:
    MARCO RUMBIN v. UTICA MUTUAL INSURANCE COMPANY ET AL.
    (SC 16213)
    Borden, Norcott, Katz, Palmer and Vertefeuille, Js.

      (Two justices dissenting in one opinion)
    Argued January 11
    officially released August 15, 2000

      Thomas G. Rohback, with whom were Katherine A. Scanlon and Peter J. Vodola, for the appellant (defendant Safeco Life Insurance Company).

      Michael J. Walsh, with whom was Ann W. Henderson, for the appellee (intervening plaintiff).

      Eliot B. Gersten filed a brief for the National Association of Structured Settlement Purchasers as amicus curiae.
   Opinion

VERTEFEUILLE, J.

The defendant Safeco Life Insurance Company (Safeco), appeals from the judgment of the trial court approving the transfer by the plaintiff, Marco Rumbin, of payments due to him under an annuity issued pursuant to a structured settlement agreement between the plaintiff and the named defendant, Utica Mutual Insurance Company (Utica Mutual). The plaintiff proposes to sell the remaining payments to the intervening plaintiff, J. G. Wentworth. The principal issues in this appeal are: (1) whether General Statutes § 52-225f invalidates antiassignment provisions that are included in structured settlement agreements and annuities issued pursuant to such agreements; and (2) whether the antiassignment clause contained in the annuity issued by Safeco1 *3 for the plaintiff beneficiary invalidates his assignment to Wentwoith. We conclude that § 52-225f does not invalidate such antiassignment provisions. We further conclude that, under Connecticut common law, the antiassignment provision in the annuity contract does not invalidate the plaintiffs assignment of his right to payments under the annuity to Wentworth. In accordance with case law and § 322 of the Restatement (Second) of Contracts, an antiassignment provision that does not limit the power to assign or expressly invalidate the assignment does not render the assignment of the annuity ineffective. Safeco, however, has the right to recover damages for the plaintiffs breach of the antiassignment provision. We therefore affirm the judgment of the trial court.

The record reveals the following facts. In April, 1998, the plaintiff and Utica Mutual entered into a structured settlement agreement to resolve a personal injury claim. Pursuant to that settlement agreement, the plaintiff was to receive from Utica Mutual a lump sum payment, followed by a series of periodic payments over the next fifteen years. The structured portion of the settlement was funded by the annuity contract issued by Safeco. The annuity contract provided under its “Assignment” provision that “[n]o payment under this annuity contract may be . . . assigned ... in any manner by the [plaintiff] . . . .”

Approximately six months after the execution of the settlement agreement and the issuance of the annuity, the plaintiff had become unemployed and faced a mortgage foreclosure action against his home, where he lived with his family. In order to resolve his financial troubles, the plaintiff decided to sell his right to the annuity payments. In November, 1998, he filed a declaratory judgment action seeking court approval, pursuant to No. 98-238, § 1, of the 1998 Public Acts (P.A. 98-238), now codified at § 52-225Í, to transfer his right to the remaining annuity payments to Wentworth in exchange for a lump sum payment and other consideration. Safeco objected to the assignment, claiming that because the annuity contract contained an antiassignment provision, P.A. 98-238 was inapplicable. Utica Mutual neither appeared at that hearing, nor provided an explanation for its failure to appear, and the trial court issued an order of default for failure to appear against Utica Mutual.

The trial court, after a hearing, concluded that P.A. 98-238 invalidated antiassignment provisions and allowed payees to tr ansfer their rights to future payments under structured settlement agreements when the statutory requirements were met. The trial court further found that, pursuant to P.A. 98-238, the proposed sale of the annuity payments was in the best interests of the plaintiff, and was fair and reasonable to all interested parties. Accordingly, the court rejected Safeco’s claim concerning the applicability of the antiassignment provision, and rendered judgment approving the transfer of the plaintiffs annuity payments to Wentworth. Safeco appealed from the trial court’s judgment to the Appellate Court, and we transferred the case to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

I

We first consider Safeco’s claim that the trial court improperly concluded that the language of § 52-225Í invalidates antiassignment provisions in structured settlement agreements and annuities issued pursuant to such agreements. We agree with Safeco, and conclude that the language of § 52-225f does not abrogate the common-law right to include an antiassignment provision in such an agreement or annuity.

It is well settled that “[i]n 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. . . . Although the legislature may eliminate a common law right by statute, the presumption that the legislature does not have such a purpose can be overcome only if the legislative intent is clearly and plainly expressed. . . . We recognize only those alterations of the common law that are clearly expressed in the language of the statute because the traditional principles of justice upon which the common law is founded should be perpetuated.” (Internal quotation marks omitted.) Alvarez v. New Haven Register, Inc., 249 Conn. 709, 715, 735 A.2d 306 (1999).

The language of § 52-225f contains no clear expression of legislative intent to alter the common law. There is, for example, no provision in the statute that addresses the impact of antiassignment provisions on the transfer of structured settlement rights. Nor does the statute grant the trial court the power to ignore antiassignment provisions, or the common law of contracts, if the court deems it appropriate or necessary. Rather, the statute requires the trial court to consider “whether the transfer of such structured settlement payment rights is in the best interests of the payee and is fair and reasonable to all interested parties under all of the circumstances then existing” and further provides, “[i]f the court determines, after hearing, that such transfer should be allowed, it shall approve such transfer upon such terms and conditions as it deems appropriate.” General Statutes § 52-225Í (c) (1). Reading that language as a clear and plain expression of the legislature’s desire to alter the common law of contracts would be an unwarranted departure from our traditional practice of presuming that “the legislature is capable of providing explicit limitations when that is its intent.” Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 290, 627 A.2d 1288 (1993). In the absence of such explicit language, we adhere to our long-standing rule that “[n]o statute is to be construed as altering the common law, farther than its words import [and a statute] is not to be construed as making any innovation upon the common law which it does not fairly express.” (Internal quotation marks omitted.) Gore v. People’s Savings Bank, 235 Conn. 360, 382, 665 A.2d 1341 (1995).

II

The primary issue raised by this case is whether, under Connecticut common law, an antiassignment provision in an annuity contract invalidates the plaintiff payee’s transfer of his right to future payments under the annuity to a third party. We conclude, in accordance with case law and § 322 of the Restatement (Second) of Contracts, that the antiassignment provision at issue here does not render the assignment of the annuity ineffective, but, instead, gives the annuity issuer, Safeco, the right to recover damages for breach of the antiassignment provision.

Although we previously have addressed the issue of the validity of contractual provisions prohibiting the assignment of contractual rights; see Lewin & Sons, Inc. v. Herman, 143 Conn. 146, 149, 120 A.2d 423 (1956) (upholding validity of contractual provision that prohibited assignment without consent); the law of contracts has changed considerably since our earlier decision. Accordingly, we now reexamine the basic legal principles regarding contractual antiassignment provisions.

Our analysis of the effect of the antiassignment provision begins by emphasizing that the modem approach to contracts rejects traditional common-law restrictions on the alienability of contract rights in favor of free assignability of contracts. See 3 Restatement (Second), Contracts § 317, p. 15 (1981) (“[a] contractual right can be assigned”); J. Murray, Jr., Contracts (3d Ed. 1990) (“the modem view is that contract rights should be freely assignable”); 3 E. Farnsworth, Contracts (2d Ed. 1998) § 11.2, p. 61 (“[t]oday most contract rights are freely transferable”). Common-law restrictions on assignment were abandoned when courts recognized the necessity of permitting the transfer of contract rights. “The force [s] of human convenience and business practice [were] too strong for the common-law doctrine that [intangible contract rights] are not assignable.” (Internal quotation marks omitted.) J. Murray, Jr., supra, § 135, p. 791. “If the law were otherwise, our modem credit economy could not exist.” 3 E. Farnsworth, supra, § 11.2, p. 61. As a result, an assignor typically can transfer his contractual right to receive future payments to an assignee. See Western United Life Assurance Co. v. Hayden, 64 F.3d 833, 841 (3d Cir. 1995); 3 E. Farnsworth, supra, § 11.2, pp. 61, 66.

The parties to a contract can include express language to limit assignment and courts generally uphold these contractual antiassignment clauses. See 3 Restatement (Second), supra, § 317, p. 15 (“[a] contractual right can be assigned unless . . . assignment is validly precluded by contract”); 3 E. Farnsworth, supra, § 11.4, pp. 82 (“most courts have upheld [terms prohibiting assignment] as precluding effective assignment”). Given the importance of free assignability, however, antiassignment clauses are construed narrowly whenever possible. See 3 E. Farnsworth, supra, § 11.4, pp. 82-83.

In inteipreting antiassignment clauses, the majority of jurisdictions now distinguish between the assignor’s “right” to assign and the “power” to assign (modem approach). For example, in Bel-Ray Co. v. Chemrite (Pty.) Ltd., 181 F.3d 435, 442 (3d Cir. 1999), the United States Court of Appeals for the Third Circuit recognized that numerous jurisdictions followed the general rule “that contractual provisions limiting or prohibiting assignments operate only to limit [the] parties’ right to assign the contract, but not their power to do so, unless the parties manifest an intent to the contrary with specificity.” (Emphasis added.) The court concluded, however, that the “assignment clauses [did] not contain the requisite clear language to limit [the] ‘power’ to assign” and, therefore, held the assignment valid and enforceable. Id., 443. The court acknowledged that contracting parties could limit the power to assign by including an “assignment provision [that] generally state[s] that nonconforming assignments (i) shall be ‘void’ or ‘invalid,’ or (ii) that the assignee shall acquire no rights or the nonassigning party shall not recognize any such assignment.” Id., 442. Without such express contractual language, however, “the provision limiting or prohibiting assignments will be interpreted merely as a covenant not to assign .... Breach of such a covenant may render the assigning party liable in damages to the non-assigning party. The assignment, however, remains valid and enforceable against both the assignor and the assignee.” Id.

Many other courts similarly have held that an antiassignment provision that limits the right to assign does not void an assignment between an assignor and assignee unless there is also an express provision limiting the power to assign or a provision voiding the assignment itself. See, e.g., Pravin Banker Associates, Ltd. v. Banco Popular Del Peru, 109 F.3d 850, 856 (2d Cir. 1997) (“ ‘[t]o reveal the intent necessary to preclude the power to assign, or cause an assignment violative of contractual provisions to be wholly void, [a contractual] clause must contain express provisions that any assignment shall be void or invalid if not made in a certain specified way’ ”); Cedar Point Apartments, Ltd. v. Cedar Point Investment Corp., 693 F.2d 748, 754 (8th Cir. 1982) (concluding that “[m]erely the ‘right to assign,’ not the power to assign, [was] limited by the express language of the [antiassignment] clause. No intent is thereby revealed to avoid an assignment not meeting the restrictions.”); Liberty Life Assurance Co. of Boston v. Stone Street Capital, Inc., 93 F. Sup. 2d 630, 637 (D. Md. 2000) (“the Court can think of no clearer way to communicate an intent to deny a party the power to assign than to expressly say so”); Wonsey v. Life Ins. Co. of North America, 32 F. Sup. 2d 939, 943 (E.D. Mich. 1998) (refusing to “[disregard] the modem trend of upholding assignments in the face of contractual anti-assignment clauses”); Pro Cardiaco Pronto Socorro Cardiologica, S.A. v. Trussell, 863 F. Sup. 135, 138 (S.D.N.Y. 1994) (“assignments are enforceable unless expressly made void”); Lomas Mortgage U.S.A., Inc. v. W.E. O’Neil Construction Co., 812 F. Sup. 841, 844 (N.D. Ill. 1993) (concluding that antiassignment clauses “do not specifically render void an attempted assignment” but “merely restrict the right to assign”); Paccom Leasing Corp. v. E.I. du Pont de Nemours & Co., Docket Nos. CIV. A. 89-255-CMW, 90-311-CMW, 1991 U.S. Dist. WL 226775, p. *7 (D. Del. October 30, 1991) (“[t]here is ample support for [the] position that distinguishes between the power to assign and the right to assign. If the power to assign is removed by contract [rendering any attempted assignment void] then the attempted assignment would be ineffective .... On the other hand, if the contract . . . merely removed the right to assign, then the assignments . . . would be upheld.”); Jacquette v. CNA Ins. Cos., Civil Action No. 98-1601 (N.H.P.) (D.N.J. November 16, 1998) (“a contractual prohibition against assignment cannot render an assignment void unless the contract explicitly states that assignments are void or invalid or otherwise ineffective”); Hanigan v. Wheeler, 19 Ariz. App. 49, 52, 504 P.2d 972 (1972) (“Where a contract contains apromise to refrain from assigning, an assignment which violates it would not be ineffective. The promise creates a duty in the promisor not to assign. It does not deprive the assignor of the power to assign . . . .” [Emphasis in original; internal quotation marks omitted.]); In re Freeman, Docket No. 98-9384-3P7 (Fla. Bankr. March 29, 1999) (“the anti-assignment provision must eliminate both Debtor’s ‘power’ to assign as well as his ‘right’ to assign the contract or rights before this Court will invalidate the assignment”); Garden State Buildings, L.P. v. First Fidelity Bank, N.A., 305 N.J. Super. 510, 522, 702 A.2d 1315 (1997) (“ ‘[t]o reveal the intent necessary to preclude the power to assign, or cause an assignment violative of contractual provisions to be wholly void, such clause must contain express provisions that any assignment shall be void or invalid if not made in a certain specified way’ ”); First England Funding, LLC v. Travelers Indemnity Co., Docket No. BER-L-5608-99 (N.J. Super. August 20, 1999) (“[t]he court further concludes that if the parties had wished to make any assignment void, that any clause purporting to invalidate assignments must contain language that it would be void or invalid if not made in a certain specified way”); University Mews Associates v. Jeanmarie, 122 Misc. 2d 434, 440, 471 N.Y.S.2d 457 (1984) (“[f]or a contractual clause forbidding or restricting an assignment of rights thereunder to reveal the intent necessary to preclude the power to assign, or cause an assignment violative of contractual provisions to be wholly void, such clause must contain express provisions that any assignment shall be void or invalid if not made in a certain specified way”); Reuben H. Donnelley Corp. v. McKinnon, 688 S.W.2d 612, 615 (Tex. App. 1985) (“because the contract term only forbids assignment ... it does not render an assignment ineffective”); see also 3 E. Farnsworth, supra, § 11.4, pp. 82-83 (“such anti-assignment clauses . . . are often read as imposing a duty on the assignor not to assign, but are not read as making an assignment invalid”); J. Murray, Jr., supra, § 138, p. 807 (“The contract may contain a promise by one or both parties to refrain from assigning. . . . The promise creates a duty in the promisor not to assign. It does not deprive the assignor of the power to assign and its breach, therefore, would simply subject the promisor to an action for damages while the assignment would be effective.” [Emphasis in original.]). Thus, the modem approach finds support in the majority of jurisdictions.

The modem approach, however, is not adopted by some courts, which uphold antiassignment clauses regardless of whether the parties have included contractual language that expressly limits the power to assign or expressly invalidates the assignment itself. We agree with these courts that contracting parties can exercise their freedom to contract to overcome free alienability when they include the appropriate contractual language. See Parrish Chiropractic Centers, P.C. v. Pro gressive Casualty Ins. Co., 874 P.2d 1049, 1054-55 (Colo. 1994) (“The policy supporting free alienability is not such an absolute one that it must override a contract provision prohibiting assignment in a specific context. ... To hold otherwise would be to force [the obligor] to deal with parties with whom it has not contracted, regardless of . . . express contractual provision . . . .” [Citations omitted; internal quotation marks omitted]); Portland Electric & Plumbing Co. v. Vancouver, 29 Wash. App. 292, 295, 627 P.2d 1350 (1981) (“The primary purpose of clauses prohibiting the assignment of contract rights without a contracting party’s permission is to protect him in selecting the persons with whom he deals. . . . When a contract prohibits assignment in ‘very specific’ and ‘unmistakable terms’ the assignment will be void against the obligor.” [Citation omitted.]). We disagree, however, with these courts that the antiassignment provisions in these cases contained the necessary contractual language. See Parrish Chiropractic Centers, P.C. v. Progressive Casualty Ins. Co., supra, 1051 (enforcing an antiassignment provision in insurance policy that stated “[i]nterest in this policy may not be assigned without our written consent” [emphasis in original]); Cloughly v. NBC Bank-Seguin, N.A., 773 S.W.2d 652, 655 (Tex. App. 1989) (prohibiting assignment when annuity agreement provided that “[s]eller . . . shall not have the right to make any assignment . . . under this [agreement without the prior written consent of the [purchaser”); Portland Electric & Plumbing Co. v. Vancouver, supra, 294 (prohibiting assignment when contract stipulated that “[t]he [contractor shall not assign this contract or any part thereof . . . without the written prior approval of the [o]wner”). These courts ignore the rule adopted by the majority of jurisdictions, which requires that in order to invalidate the assignment, the parties must include in their antiassignment provision language that specifically limits the power to assign or invalidates the assignment itself.

The modem approach offers the advantage of free assignability together with full protection for any obligor who actually suffers damages as a result of an assignment. An assignor who breaches a contractual provision limiting his or her right to assign will be hable for any damages that result from that assignment. See, e.g., Bel-Ray Co. v. Chemrite (Pty.) Ltd., supra, 181 F.3d 442 (“the provision limiting or prohibiting assignments will be interpreted merely as a covenant not to assign .... Breach of such a covenant may render the assigning party liable in damages to the non-assigning party. The assignment, however, remains valid and enforceable . . . .”); Cedar Point Apartments, Ltd. v. Cedar Point Investment Corp., supra, 693 F.2d 754 n.4 (breach of promise to refrain from assigning or to assign under certain conditions does not render assignment ineffective but may provide remedy for damages if breach was material); International Telecommunications Exchange Corp. v. MCI Telecommunications Corp., 892 F. Sup. 1520, 1533 (N.D. Ga. 1995) (“ ‘abreach of covenant not to assign creates a right in the contractobligee to recover against the obligor-assignor any damage suffered by reason of the assignment, but it does not affect the transfer of contract rights to the assignee’ ”); Pro Cardiaco Pronto Socorro Cardiologica, S.A. v. Trussell, supra, 863 F. Sup. 137 (“[a]n assignment made in violation of a personal covenant prohibiting assignments is enforceable, although it does give rise to a damages action against the assignor”); Lomas Mortgage U.S.A., Inc. v. W.E. O’Neil Construction Co., supra, 812 F. Sup. 844 (finding that contractual clause “merely restricts the right to assign” and provides obligor “with a right to damages for breach of the portion of the contract forbidding assignment”); Paccom Leasing Corp. v. E.I. du Pont de Nemours & Co., supra, 1991 U.S. Dist. WL 226775, p. *7 (“if the contract . . . merely removed the right to assign . . . a duty was imposed on the promisor . . . not to assign and a breach of that duty would give rise to a cause of action, but the assignment would remain effective”); Jacquette v. CNA Ins. Cos., supra, Civil Action No. 98-1601 (NHP) (discussing that while obligor may have right to damages for breach of antiassignment provision, assignment must expressly state that it is void or invalid); Hanigan v. Wheeler, supra, 19 Ariz. App. 52 (“[w]here a contract contains a promise to refrain from assigning ... its breach . . . would simply subject the promisor to an action for damages while the assignment would be effective” [emphasis in original; internal quotation marks omitted.]); Randol v. Tatum, 98 Cal. 390, 397, 33 P. 433 (1893) (holding that assignment in violation of covenant not to assign is not void but provides remedy for breach of covenant); Garden State Buildings, L.P. v. First Fidelity Bank, N.A., supra, 305 N.J. Super. 522 (“ ‘[a contractual] clause must contain express provisions that any assignment shall be void or invalid’ . . . [otherwise, the assignment is effective, and the obligor merely has the right to damages”); Allhusen v. Caristo Construction Corp., 303 N.Y. 446, 450, 103 N.E.2d 891 (1952) (recognizing that when assignment valid despite antiassignment clause obligor has claim for damage for breach); Macklowe v. 42nd Street Development Corp., 170 App. Div. 2d 388, 389, 566 N.Y.S.2d 606 (1991) (“where the language employed constitutes merely a personal covenant against assignments, an assignment made in violation of such covenant gives rise only to a claim for damages against the assignor for violation of the covenant”); Sullivan v. International Fidelity Ins. Co., 96 App. Div. 2d 555, 556, 465 N.Y.S.2d 235 (1983) (“an assignment made in violation of such covenant gives rise only to a claim for damages against the assignor for violation of the covenant”); University Mews Associates v. Jeanmarie, supra, 122 Misc. 2d 440 (holding that contractual clause “must specifically eliminate the power as well as the right to assign the contract . . . otherwise the original obligor is given only the right to damages for its breach, but does not render the assignment ineffective”); Reuben H. Donnelley Corp. v. McKinnon, supra, 688 S.W.2d 614-15 (recognizing that obligor has right to damages for breach of contract term forbidding assignment but does not render assignment ineffective); see also J. Murray, Jr., supra, § 138, p. 807. Thus, courts in numerous jurisdictions have recognized the evenhandedness of the modem approach.

This approach is also adopted in the Restatement (Second) of Contracts. Section 322 (2) (b) of the Restatement (Second), supra, provides that the general rule is “[a] contract term prohibiting assignment of rights under the contract, unless a different intention is manifested . . . (b) gives the obligor a right to damages for breach of the terms forbidding assignment but does not render the assignment ineffective . . . .” See, e.g., Bel-Ray Co. v. Chemrite (Pty.) Ltd., supra, 181 F.3d 442; US. Industries, Inc. v. Touche Ross & Co., 854 F.2d 1223, 1233 (10th Cir. 1988); Cedar Point Apartments, Ltd. v. Cedar Point Investment Corp., supra, 693 F.2d 754; Liberty Life Assurance Co. of Boston v. Stone Street Capital, Inc., supra, 93 F. Sup. 2d 637; Wonsey v. Life Ins. Co. of North America, supra, 32 F. Sup. 2d 943; Lomas Mortgage U.S.A., Inc. v. W.E. O’Neil Construction Co., supra, 812 F. Sup. 843-44; Jacquette v. CNA Ins. Cos., supra, Civil Action No. 98-1601; Garden State Buildings, L.P. v. First Fidelity Bank, N.A., supra, 305 N.J. Super. 521; First England Funding, LLC v. Travelers Indemnity Co., supra, Docket No. BER-L-5608-99; University Mews Associates v. Jeanmarie, supra, 122 Misc. 2d 440; Reuben H. Donnelley Corp. v. McKinnon, supra, 688 S.W.2d 615.

In the present case, the annuity contract provided that “[n]o payment under this annuity contract may be . . . assigned” by the plaintiff. This antiassignment provision limited the plaintiffs right to assign, but not his power to do so. The provision did not contain any express language to limit the power to assign or to void the assignment itself. Therefore, in accordance with the modem approach, we conclude that the plaintiffs assignment to Wentworth is valid and enforceable despite the plaintiffs breach of the contract’s antiassignment provision. We further conclude, however, that Safeco is free to sue for any damages that it might sustain as a result of the assignment by bringing an action for breach of contract against the plaintiff as assignor. See, e.g., Bel-Ray Co. v. Chemrite (Pty.) Ltd., supra, 181 F.3d 442; Pro Cardiaco Pronto Socorro Cardiologica, S.A. v. Trussell, supra, 863 F. Sup. 137-38; Macklowe v. 42nd Street Development Corp., supra, 170 App. Div. 2d 389; Sullivan v. International Fidelity Ins. Co., supra, 96 App. Div. 2d 556. Alternatively, Safeco may pursue damages from Wentworth, who, as the assignee, “ ‘stands in the shoes of the assignor.’ ” 3 E. Farnsworth, supra, § 11.8, p. 105; see id., 105-107; 3 S. Williston, Contracts (3d Ed. I960) § 404, p. 5, and § 432, pp. 181-83. Safeco, therefore, is fully protected against any actual damages that it might sustain as a result of the plaintiffs breach of the antiassignment provision. The modem approach thus serves the dual objectives of free assignability of contracts together with full compensation for any actual damages that might result from an assignment made in breach of an antiassignment provision.

The judgment is affirmed.

In this opinion BORDEN and PALMER, Js., concurred.

NORCOTT, J.,

with whom KATZ, J., joins, dissenting. I agree with the majority’s conclusion that General Statutes § 52-225Í does not act to invalidate antiassignment provisions as a general matter. I disagree, however, with the majority’s determination that our common law, and § 322 of the Restatement (Second) of Contracts, give the plaintiff, Marco Rumbin, the freedom to ignore a validly executed, and freely made, antiassignment provision in order to transfer his right to payment under the structured settlement agreement. I therefore respectfully dissent.

I

I take no issue with the well settled precept of modem contract law that a “contractual right can be assigned unless . . . the assignment is forbidden by statute or is otherwise inoperative on grounds of public policy, or . . . assignment is validly precluded by contract.” 3 Restatement (Second), Contracts § 317 (1981). Without this rule, which replaced the anachronistic common-law prohibition against the assignment of choses in action, “our modem credit economy could not exist.” 3 E. Farnsworth, Contracts (1990) § 11.2, p. 61. Certainly, the majority is correct when it notes that “courts [have] recognized the necessity of permitting the transfer of contract rights. . . . As a result, an assignor typically can transfer his contractual right to receive future payments to an assignee.” (Citations omitted; internal quotation marks omitted.)

That said, the majority chooses to ignore a concept that is just as central to this court’s jurisprudence, namely, a healthy respect for the power of independent persons to bargain for, or away, contractual provisions in the course of making a contract. This court repeatedly has emphasized that, absent fraud, duress, unconscionability, or other similar infirmity, courts are not in the business of remaking contracts to suit the changing whims of the contracting parties. See, e.g., Robert Law rence Associates, Inc. v. Del Vecchio, 178 Conn. 1, 21-22, 420 A.2d 1142 (1979) (“whether provident or improvident . . . contracts voluntarily and fairly made should be held valid and [be] enforced in the courts”). As this court recently stated, “[e]ven if the result of the fair and logical enforcement of unambiguous agreements seems unduly to burden one of the parties, we decline to embark a voyage into uncharted waters in which untrammeled and unrestrained judicial revisionism would depart significantly from an aspect of contract law upon which contracting parties reasonably can be assumed to have relied for many years.” Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 506, 746 A.2d 1277 (2000). Therefore, in spite of the aforementioned importance of contractual alienability, this court has a responsibility not to render unrecognizable the basic rules of contract law.

Bearing those competing concerns in mind, the general rule governing antiassignment provisions is that “[a] contract term prohibiting assignment of rights under the contract, unless a different intention is manifested . . . gives the obligor a right to damages for breach of the terms forbidding assignment but does not render the assignment ineffective . . . .”3 Restatement (Second), supra, § 322. The crucial phrase in that rule—“unless a different intention is manifested”—is one that this court never has interpreted. The generally accepted view, however, is that this phrase encompasses a dichotomy between the right to assign, and the power to assign, and that only an antiassignment provision that restricts the latter will render any assignment made in spite of that provision invalid.

The dichotomy between the right to assign and the power to assign, which is the starting point of the majority’s analysis, is one with which I do not disagree. The fundamental source of my dissatisfaction with the majority’s reasoning is the standard that the majority opinion announces for judging whether an antiassignment provision restricts the right to assign or the power to assign. In my mind, that standard imposes on contracting parties an illogical and arbitrary set contractual mantra that must be recited in order to draft a valid antiassignment clause.

As the majority notes, several courts, most notably those of New Jersey and New York, have adopted precise linguistic requirements relating to the manifestation of the intent necessary to render an assignment of rights ineffective. Those courts have held that “ ‘[t]o reveal the intent necessary to preclude the power to assign, or cause an assignment violative of contractual provisions to be wholly void, such clause musí contain express provisions that any assignment shall be void or invalid if not made in a certain specified way.’ ” (Emphasis added.) Garden State Buildings, L.P. v. First Fidelity Bank, N.A., 305 N.J. Super. 510, 522, 702 A.2d 1315 (1997); accord Bel-Ray Co. v. Chemrile (Pty.) Ltd., 181 F.3d 435, 442 (3rd Cir. 1999) (interpreting New Jersey law); Pravin Banker Associates, Ltd. v. Banco Popular Del Peru, 109 F.3d 850, 856 (2d Cir. 1997) (New York law); Cedar Point Apartments, Ltd. v. Cedar Point Investment Corp., 693 F.2d 748, 754 (8th Cir. 1982) (Missouri law); Pro Cardiaco Pronto Socorro Cardiologica, S.A. v. Trussell, 863 F. Sup. 135, 137 (S.D.N.Y. 1994) (New York law); Lomas Mortgage U.S.A., Inc. v. W.E. O’Neil Construction Co., 812 F. Sup. 841, 843-44 (N.D. Ill. 1993) (Illinois law); Allhusen v. Caristo Construction Corp., 303 N.Y. 446, 450-51, 103 N.E.2d 891 (1952) (New York law).

The rationale adopted by these courts is “that contractual provisions limiting or prohibiting assignments operate only to limit a [party’s] right to assign the contract, but not [its] power to do so, unless the parties manifest an intent to the contrary with specificity.” Bel- Ray Co. v. Chemrite (Pty.) Ltd., supra, 181 F.3d 442. In order to manifest that specific intent, “the assignment provision must generally state that nonconforming assignments (i) shall be ‘void’ or ‘invalid,’ or (ii) that the assignee shall acquire no rights or the nonassigning party shall not recognize any such assignment.” Id. Greatly favoring the free assignability of contractual rights, these courts have adopted the previously mentioned bright-line test for antiassignment clauses.

A number of jurisdictions that have considered the issue, however, have not been so insistent on the use of particular phraseology. Those courts simply have examined whether the prohibitive language employed by the parties was clear and unambiguous, and upheld the antiassignment clause when such language was used. See, e.g., Grieve v. General American Life Ins. Co., 58 F. Sup. 2d 319, 324 (D. Vt. 1999) (antiassignment provisions were “unambiguous, bargained-for contract terms”); Parrish Chiropractic Centers, P.C. v. Progressive Casualty Ins. Co., 874 P.2d 1049, 1052 (Colo. 1994) (requiring antiassignment clause to “specifically [prohibit] the assignment of rights”); Antal’s Restaurant v. Lumbermen’s Mutual Casualty Co., 680 A.2d 1386, 1388 (D.C. App. 1996) (“courts generally ‘will honor an anti-assignment clause in contracts when it contains clear, unambiguous language’ ”); Peterson v. District of Columbia Lottery, 673 A.2d 664, 667 (D.C. App. 1996) (same); Henderson v. Roadway Express, 308 Ill. App. 3d 546, 720 N.E.2d 1108, 1110 (1999) (“the plain language . . . clearly indicates the parties intended to forbid [the assignment of rights]”); Cloughly v. NBC Bank-Seguin, N.A., 773 S.W.2d 652, 655 (Tex. App. 1989) (“where a contract expressly states that a right to payment arising under it is non-assignable, full force and effect must be given to this provision”); Portland Electric & Plumbing Co. v. Vancouver, 29 Wash. App. 292, 295, 627 P.2d 1350 (1981) (“[w]hen a contract prohibits assignment in ‘very specific’ and ‘unmistakable terms’ the assignment will be void against the obligor”).

In many of those cases the antiassignment language approved of bears little resemblance to the precise requirements set forth in the New Jersey and New York cases. For example, in Portland Electric & Plumbing Co. v. Vancouver, supra, 29 Wash. App. 294, the contract merely stated that “[t]he Contractor shall not assign this contract or any part thereof, or any moneys due or to become due thereunder . . . .” Yet, the Court of Appeals of Washington held that “[t]he language in the subject contract is sufficient to prohibit any effective assignment of monies due . . . .” Id., 295. A similar conclusion was reached by the Supreme Court of Colorado as to a contract that prohibited only the assignment “of any interest” in the contract. Parrish Chiropractic Centers, P.C. v. Progressive Casualty Ins. Co., supra, 874 P.2d 1051. The court upheld that provision as preventing any effective assignment because “[w]hen a contractual provision is clear and unambiguous, courts should neither rewrite it nor limit its effect by a strained construction.” Id., 1055; see also Cloughly v. NBC Bank-Seguin, N.A., supra, 773 S.W.2d 655 (Texas Court of Appeals upheld validity of clause that provided “ ‘[the plaintiff] shall not have the right to make any assignment or transfer any rights under this [agreement’ ”).

Most significantly, in three recent cases, courts have upheld antiassignment provisions in structured settlement agreements in spite of the fact that the provisions did not contain the words “void” or “invalid.” See Grieve v. General American Life Ins. Co., supra, 58 F. Sup. 2d 321 (provision stating “nor shall [the plaintiff] or any Payee have the power to sell, mortgage, encumber, or anticipate the periodic payments” valid to prevent assignment); Johnson v. First Colony Life Ins. Co., 26 F. Sup. 2d 1227 (C.D. Cal. 1998) (provisionstating that “[the plaintiff shall not] have the power to sell or mortgage or encumber [any periodic payments]” prohibited assignment); Henderson v. Roadway Express, supra, 720 N.E.2d 1109 (provision stating that “ ‘the [p]laintiff [shall not] have the power to sell, mortgage, encumber, or anticipate the Periodic Payments’ ” valid to prevent assignment). In all three of these cases, the courts’ main concern was the possible precedential effect of a decision “[lending the court’s] approval to the voiding of unambiguous, bargained-for contract terms . . . .” Grieve v. General American Life Ins. Co., supra, 324.

Although the majority acknowledges the difference between these two schools of thought, the majority nevertheless decides to impose formulaic restraints on the language that contracting parties may employ to craft an antiassignment clause that limits the power to assign. This holding flies in the face of decades of our jurisprudence.

We long have held that “[t]he intention of the parties to a contract governs the determination of the parties’ rights and obligations under the contract. . . . Analysis of the contract focuses on the intention of the patties as derived from the language employed. . . . Where the intention of the parties is clearly and unambiguously set forth, effect must be given to that intent.” (Citations omitted.) Levine v. Advest, Inc., 244 Conn. 732, 745-46, 714 A.2d 649 (1998). At the heart of that rale is our understanding that different parties may choose differing language in order to express their intent, but so long as the language employed clearly manifests their joint contractual will, we are bound to enforce the contract’s terms.

In my opinion, this principle mandates against following the courts of New Jersey and New York in establishing a concrete formula that contracting parties must follow in order to write a valid antiassignment clause into a contract. Following a majority of the courts that have considered the issue, it would be preferable simply to hold that, so long as the language employed by the parties clearly and unambiguously establishes their intent to prohibit any assignment of rights under the contract, such an antiassignment clause will be valid and enforceable.

II

In the present case, I would conclude that the language of the antiassignment clauses contained in the settlement agreement and annuity contract are sufficiently clear and unambiguous to allow them to be enforced.

It is well settled that we interpret contract language in accordance with “a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.” (Internal quotation marks omitted.) Pesino v. Atlantic Bank of New York, 244 Conn. 85, 91-92, 709 A.2d 540 (1998). “If the terms of [a contract] are clear, their meaning cannot be forced or strained by an unwarranted construction to give them a meaning which the parties obviously never intended. ... A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings.” (Citations omitted.) Downs v. National Casualty Co., 146 Conn. 490, 494-95, 152 A.2d 316 (1959).

The language employed in the antiassignment clauses at issue in the present case, when accorded its common and natural meaning, clearly and unambiguously prohibits the assignment of periodic payments. The settlement agreement provided in relevant part: “It is understood and agreed that . . . [the plaintiff] may not assign, pledge or sell the consideration to any third party in consideration of the payments made and to be made by [the defendant Utica Mutual Insurance Company]. ...” The annuity contract provided in relevant part: “No payment under this annuity contract may be . . . sold, assigned, or encumbered in any manner by the [plaintiff] ... or any other recipient of the payment. ...” Each of these clauses contains simple, easily understood language that clearly prohibits the assignment of any of the periodic payments.

In an attempt to call into question whether the plaintiff freely entered into these contracts, the majority notes that “[a] review of the annuity contract in the present case reveals that it is a preprinted, standardized insurance contract in which the plaintiff was the named annuitant. It was not a contract arrived at by actual negotiation between the parties.” That statement inexplicably ignores the status of the settlement agreement, which most likely was the product of negotiation between the plaintiff and the original insurer, and gives short shrift to the fact that the plaintiff never has claimed that either contract was one of adhesion.

As discussed in part I of this dissent, three courts that recently have considered structured settlement agreements containing similar- prohibitive language have held that the language in question prevented assignment. See Grieve v. General American Life Ins. Co., supra, 58 F. Sup. 2d 321 (“nor shall [the plaintiff] or any Payee have the power to sell, mortgage, encumber, or anticipate the periodic payments”); Johnson v. First Colony Life Ins. Co., supra, 26 F. Sup. 2d 1227 (“[the plaintiff shall not] have the power to sell or mortgage or encumber [any periodic payments]”); Hender son v. Roadway Express, supra, 720 N.E.2d 1109 (“ ‘the [p]laintiff [shall not] have the power to sell, mortgage, encumber, or anticipate the Periodic Payments’ ”).

In my view, the similarity between the language at issue in the present case, and the language at issue in Grieve, Johnson and Henderson, militates against the majority’s conclusion. Unlike the requirements imposed by the courts of New Jersey and New York, neither the antiassignment clauses in those three cases, nor the clauses at issue in the present case, make use of the words “void” or “invalid.” Yet, the language of all of those clauses unmistakably is couched in terms plain and common enough to provide clear guidance as to the parties’ intent to prohibit assignment. I conclude, therefore, as did the court in Henderson, that “the plain language of the settlement agreement clearly indicates the parties intended to forbid [the plaintiff] from assigning his periodic payments.” Henderson v. Roadway Express, supra, 720 N.E.2d 1110.

This conclusion is buttressed, in the present case, by the language of § 322 (2)(c) of the Restatement (Second) of Contracts, which provides that “[a] contract term prohibiting assignment of rights under the contract . . . is for the benefit of the obligor, and does not prevent the assignee from acquiring rights against the assignor or the obligor from discharging his duty as if there were no such prohibition.” (Emphasis added.) The Restatement, although cognizant of the need for free transfer of contractual rights, also recognizes, and approves of, the desire of obligors to protect their financial interests. As noted in comment (a) to § 322 of the Restatement, “[a] term in a contract prohibiting assignment of the rights created may resolve doubts as to whether assignment would materially change the obligor’s duty ... or it may serve to protect the obligor against conflicting claims and the hazard of double liability.”

Although in the present case the trial court concluded that “[Safeco] . . . has not offered evidence of danger of suffering adverse tax effects as a result of the transfer nor is there other evidence of any detriment to it,” that conclusion is irrelevant. As the court in Henderson noted, “[m]ore important than whether or not these tax concerns are real or will actually arise is the fact that the parties implemented the antiassignment provisions with these concerns in mind.” Henderson v. Roadway Express, supra, 720 N.E.2d 1113; accord Johnson v. First Colony Life Ins. Co., supra, 26 F. Sup. 2d 1229 n.4 (“[i]t appears that [uncertainty over adverse tax consequences] is what defendants wished to eliminate by including the nonassignability clause”).

In the present case, Safeco may, or may not, suffer a detrimental change in its tax position as the annuity issuer as a result of the proposed transfer. Even if, however, the anticipated change for the worse never ensues, the antiassignment clauses were included to forestall that possibility. Therefore, unless the clauses are waived by Safeco, they exist as a safeguard against such adverse potential future consequences, and must be enforced.

Ill

I am not unmindful of the conflicting jurisprudential interests raised by this case. Nor am I unaware of the straitened financial circumstances that may lead persons to trade future contractual rights for money in the here and now. Nevertheless, while I agree that the free assignability of contractual lights is an objective that this court should attempt to promote, free assignability is not the only, or even the paramount, jurisprudential consideration that necessarily must bear on our decision in the present case. Just as important is the need for this court to announce and adhere to a policy of promoting the evenhanded enforcement of fairly made and entered-into contracts, even if adherence to this policy causes hardship under a particular set of facts. Certainly, such a policy is preferable to a decision which will “lend [this court’s] approval to the voiding of unambiguous, bargained-for contract terms in order to enable [the intervening plaintiff, J. G. Wentworth] to profit . . . from [the plaintiffs] financial distress.” Grieve v. General American Life Ins. Co., supra, 58 F. Sup. 2d 324.

Accordingly, I dissent.

       The only party objecting to the sale of the annuity contract is Safeco, the issuer of the annuity contract. Utica Mutual is not a party to this appeal.

       For the remainder of this opinion, we use the term “plaintiff’ to refer to Rumbin and the term “plaintiffs” to refer to both the named plaintiff, Rumbin, and the intervening plaintiff, Wentworth.

       General Statutes § 52-2251 provides: “(a) For purposes of this section:
      “(1) ‘Annuity issuer’ means an insurer that has issued any insurance contract used to fund periodic payments under a structured settlement;
      “(2) ‘Expenses’ means all broker’s commissions, service charges, applica.tion or processing fees, closing costs, filing or administrative charges, legal fees, notary fees and other commissions, fees, costs and charges payable by the payee in connection with the proposed transfer or deductible from the gross consideration that would be paid to the payee in connection with the transfer;
      “(3) ‘Interested parties’ means, with respect to any structured settlement, the payee, any beneficiary designated to receive payments following the payee’s death or, if the designated beneficiary is a minor, the designated beneficiary’s parent or guardian, the annuity issuer and the structured settlement obligor;
      “(4) ‘Payee’ means an individual who is receiving payments under a structured settlement and proposes to make a transfer of payment rights thereunder;
      “(5) ‘Structured settlement’ means an arrangement for periodic payment of damages established by settlement or judgment in resolution of a tort claim or for periodic payments in settlement of a workers’ compensation claim;
      “(6) 'Structured settlement obligor’ means, with respect to any structured settlement, the party that has the continuing periodic payment obligation 1 o the payee under a structured settlement agreement or under an agreement providing for a qualified assignment within the meaning of Sed ion 130 of the Internal Revenue Code of 1986, or any subsequent corresponding internal revenue code of the United States, as from time to time amended;
      “(7) ‘Structured settlement payment rights’ means rights to receive periodic payments, including lump sum payments, under a structured settlement, whether from the settlement obligor or the annuity issuer;
      “(8) ‘Transfer’ means any sale, assignment, pledge, hypothecation or other form of alienation or encumbrance made for consideration;
      “(9) ‘Transfer agreement’ means the agreement providing for transfer of structured settlement payment rights from a payee to a transferee; and
      “(10) ‘Transferee’ means any person receiving structured settlement payment rights resulting from a transfer.
      “(b) No transfer of structured settlement payment rights, either directly or indirectly, shall be effective by any payee domiciled in this state or by any payee entitled to receive payments under a structured settlement funded by an insurance contract issued by an insurer domiciled in this state or owned by an insurer or corporation domiciled in this st ate and no structured settlement obligor or annuity issuer shall be required to make any payment directly or indirectly to any transferee of any such transfer unless (1) not less than ten days prior to the date on which the payee entered into the transfer agreement, the transferee provided to the payee a written disclosure statement setting forth (A) the amounts and due dates of the structured settlement payments to be transferred; (B) the aggregate amount of the payments; (C) the gross amount of all expenses; (D) the amount payable to the payee, net of all expenses, in exchange for the payments; (E) the discounted present value of all structured settlement payments to be transferred and the discount rate used in determining such discounted present value; and (F) a statement that the payee may be subject to adverse federal and state income tax consequences as a result of the proposed transfer; and (2) such transfer has been approved by a court pursuant to subsection (c) of this section.
      “(c) (1) Prior to any transfer, the payee entitled to receive payments under such structured settlement shall commence a declaratory judgment action under section 52-29 for a determination as to whether the transfer of such structured settlement payment rights is in the best interests of the payee and is fair and reasonable to all interested parties under all of the circumstances then existing. The annuity issuer and the structured settlement obligor shall be made parties to such action. If the court determines, after hearing, that such transfer should be allowed, it shall approve such transfer upon such terms and conditions as it deems appropriate.
      “(2) The court in which the original action was or could have been filed or the court which has jurisdiction where the applicant resides shall have jurisdiction over any such action.
      “(3) The payee shall cause notice of the action to be served on all interested parties by a proper officer or other person lawfully empowered to make service. The notice of the action shall include (A) a copy of the payee’s application to the court for approval of the transfer, (B) a copy of the disclosure statement required under subsection (b) of this section and (C) notice of the hearing.
      “(4) The payee may seek an order setting the deadline for the filing of written objections. The payee shall give notice to all interested parties of the deadline for filing objections whether such deadline has been established by court order or by operation of the general statutes or court rule. Notice shall be mailed to all interested parties at least ten days before such deadline.
      “(5) The court shall hold a hearing on the application. The payee shall give notice of the hearing to all interested parties.
      “(d) Nothing contained in this section shall imply that any transfer under a transfer agreement dated prior to October 1, 1998, is binding upon any interested party or that any annuity issuer or structured settlement obligor is under any obligation to make transferred payments to the transferee of any such prior transfer.
      “(e) The provisions of this section may not be waived.”

       The plaintiffs also raise the claim that Safeco lacks standing to pursue the present appeal because Safeco was not a party to the structured settlement agreement between Utica Mutual and the plaintiff and because the plaintiff was not a party to the annuity contract between Utica Mutual and Safeco and, therefore, there was no privity of contract between Safeco and the plaintiff. We do not find it necessary to reach the plaintiffs’ claim that Safeco lacked standing because the only relevant antiassignment provision in this case is the one in the annuity contract, the only agreement to which Safeco is a party. We acknowledge that Safeco is statutorily authorized to pursue this appeal. In a declaratory judgment action to determine whether a payee can transfer his structured settlement payment rights, “[t]he annuity issuer . . . shall be made [a party] to such action. . . (Emphasis added.) General Statutes § 52-225Í (c) (1). Given that Safeco issued the annuity contract to fund the payments due to the plaintiff under the settlement agreement, Safeco fits the definition of an annuity issuer under the statutory provision.

       Under the terms of the settlement agreement, the plaintiff was entitled to receive $52,000 within thirty days of its execution, thirty semiannual payments of $1323.09 beginning on March 6, 1999, and a final lump sum payment of $44,000 on March 6, 2014.

       The plaintiff has not claimed that the annuity contract is a contract of adhesion. Typically, “life insurance contracts are [considered] contracts of adhesion because [t]he contract is drawn up by the insurer and the insured, who merely adheres to it, has little choice as to its terms. . . . Standardized contracts of insurance continue to be prime examples of contracts of adhesion, whose most salient feature is that they are not subject to the normal bargaining processes of ordinary contracts.” (Citation omitted; internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 416, 538 A.2d 219 (1988). A review of the annuity contract in the present case reveals that it is a preprinted, standardized insurance contract in which the plaintiff was the named annuitant. It was not a contract arrived at by actual negotiation between the parties. We disagree with the dissent’s characterization of the antiassignment clause as a bargained for provision of the annuity contract.

       Utica Mutual has not challenged that order and, therefore, is not a party to this appeal.

       In their brief, the plaintiffs argue that, rather than implicating the presumption against statutory abrogation of common-law rights, this case is simply one of statutory interpretation. Inasmuch as this contention is based entirely on the plaintiffs’ claim that antiassignment provisions are invalid under the common law of Connecticut—a claim which we reject in part II of this opinion—the plaintiffs’ argument is without merit.

       A number of courts that have considered structured settlement agreements have enforced antiassignment provisions that explicitly deprive the assignor of the power to assign or otherwise provide that any assignment will be invalid. See, e.g., Liberty Life Assurance Co. of Boston v. Stone Street Capital, Inc., supra, 93 F. Sup. 2d 638 (holding that “the anti-assignment clause is a valid and enforceable term of the Settlement Agreement, and that [the] plaintiffs intended the clause to deny [the assignor] the power to assign” [emphasis added]); Grieve v. General American Life Ins. Co., 58 F. Sup. 2d 319, 321 (D. Vt. 1999) (upholding antiassignment provision that provided “nor shall [the plaintiff] . . . have the power to sell ... or anticipate the periodic payments, or any part thereof, by assignment or otherwise” [emphasis added; internal quotation marks omitted]); Johnson v. First Colony Life Ins. Co., 26 F. Sup. 2d 1227 (C.D. Cal. 1998) (upholdingan antiassignment provision that provided “nor shall [the plaintiffs] have the power to sell ... or anticipate the same or any part thereof by assignment or otherwise” [emphasis added; internal quotation marks omitted]). Henderson v. Roadway Express, 308 Ill. App. 3d 546, 720 N.E.2d 1108, 1110 (1999) (enforcing antiassignment clause that “specifically states [that the assignor] lacked the power to sell or anticipate his periodic payments, ‘by assignment or otherwise’ ” [emphasis added]). The dissent relies on these cases. We view them, however, as consistent with the modem approach because each of the provisions in question explicitly deprived the assignor of the power to assign.

       The dissent suggests that it is principally the courts of New York and New Jersey that employ the modem approach to antiassignment provisions. A review of the cases on which we rely, however, demonstrates that many courts other than New York and New Jersey have used this approach. In fact, the majority of jurisdictions have adopted the modem approach.

       At the trial court hearing, Safeco did not show any actual damages resulting from the assignment. It argues, however, that upholding the assignment increases the risk of losing certain purported favorable federal tax treatment afforded to both the insurance company and the annuitant. More specifically, an insurer can fund its liability under a structured settlement agreement by purchasing an annuity that grows tax free while the annuitant receives tax free payments from that annuity. Safeco argues that allowing a party to assign his rights to payments frustrates the public policy of ensuring a steady source of income to that party and creates a risk that the favorable tax treatment will be lost. We agree with the trial court’s findings that “[Safeco] . . . has not offered evidence of danger of suffering adverse tax effects as a result of the transfer nor is there other evidence of any detriment to it by virtue of the transfer.” Although Safeco has raised the specter of a risk of losing its favorable tax treatment, it has not provided any evidence that there will be an actual adverse effect if this court were to uphold the assignment.

         See, e.g., Settlement Funding, LLC v. Jamestown Life Ins. Co., 78 F. Sup. 2d 1349, 1355-56 (N.D. Ga. 1999) (“assignment of contract rights is allowed unless prohibited”); Grieve v. General American Life Ins. Co., 58 F. Sup. 2d 319, 322 (D. Vt. 1999) (same); Johnson v. First Colony Life Ins. Co., 26 F. Sup. 2d 1227, 1229 (C.D. Cal. 1998) (same); Parrish Chiropractic Centers, P.C. v. Progressive Casualty Ins. Co., 874 P.2d 1049, 1052 (Colo. 1994) (same); Peterson v. District of Columbia Lottery, 673 A.2d 664, 667 (D.C. App. 1996) (same); New Holland, Inc. v. Trunk, 579 So. 2d 215, 217 (Fla. App. 1991) (same); Goldberg Realty Group v. Weinstein, 669 A.2d 187, 191 (Me. 1996) (same); American Employers’ Ins. Co. v. Medford, 38 Mass. App. 18, 22, 644 N.E.2d 241 (1995) (same); Vetter v. Security Continental Ins. Co., 567 N.W.2d 516, 521 (Minn. 1997) (same); Great Southern National Bank v. McCullough Environmental, Services, Inc., 595 So. 2d 1282, 1287 (Miss. 1992) (same); Special Products Mfg., Inc. v. Douglass, 159 A.D.2d 847, 849, 553 N.Y.S.2d 506 (1990) (same); Kraft Foodservice, Inc. v. Hardee, 340 N.C. 344, 347, 457 S.E.2d 596 (1995) (same); Winegar v. Froerer Corp., 813 P.2d 104, 107 (Utah 1991) (same); Berschauer/Phillips Construction Co. v. Seattle School District No. 1, 124 Wash. 2d 816, 829, 881 P.2d 986 (1994) (same); see also 3 E. Farnsworth, Contracts (1990) § 11.2, p. 61 (“[t]oday most contract rights are freely transferable”).

       Similarly, a number of courts, although not expressly setting out a test for the validity of antiassignment provisions, nevertheless have upheld such provisions as a general matter. See, e.g., Larese v. Creamland Dairies, Inc., 767 F.2d 716, 718 (10th Cir. 1985) (antiassignment clauses valid, bargained for provisions); Cheney v. Jemmett, 107 Idaho 829, 832, 693 P.2d 1031 (1984) ("[provisions in bilateral contracts which forbid or restrict assignment . . . without the consent, of the obligor have generally been upheld as valid and enforceable"); Augusta, Medical Comptex v. Blue Cross of Kansas, 230 Kan. 361, 367, 634 P.2d 1123 (1981) (assignment barred where contract expressly prohibits); Wilkie v. Becker, 268 Minn. 262, 267, 128 N.W.2d 704 (1964) (same); Forsythe v. Elkins, 216 Mont. 108, 114, 700 P.2d 596 (1985) (same).

       Compare the prohibitive language employed in those three cases with the language in the settlement agreement in Settlement Funding, LLC v. Jamestown Life Ins. Co., 78 F. Sup. 2d 1349 (N.D. 1999). In that case, the fact that the settlement agreement denied only the iiyured persons the right to “accelerate, defer, increase or decrease the amount of [the payments]” was held not to prohibit assignment. Id., 1357.

       The majority attempts to characterize these three cases as being consistent with the modem approach disfavoring limitations on the assignability of contractual rights. That characterization ignores the fact that all three of the cases uphold the validity of antiassignment clauses that do not contain the words “void” or “invalid.” It is true, as the majority notes, that the clauses in all three cases make use of the word “power.” In my view, however, that choice does not reflect a rigid limitation on the language that contracting parties may employ to prevent the assignment of contractual rights. Rather, it is evidence of those courts’ adherence to one of the bedrock principles of contract law, namely, a court’s responsibility not to “ignore the parties’ clear intentions to incorporate [a] bargained-for provision.” Henderson v. Roadway Express, supra, 720 N.E.2d 1113.

       The settlement agreement provided in relevant part: “It is understood and agreed that. . . [the plaintiff] may not assign, pledge or sell the consideration to any third party in consideration of the payments made and to be made by [the defendant Utica Mutual Insurance Company], . . .”
      The annuity contract provided in relevant part: “No payment under this annuity contract may be . . . sold, assigned, or encumbered in any manner by the [plaintiff] ... or any other recipient of the payment. . . .”

       Without offering any cogent rationale for so doing, the majority considers only the antiassignment clause contained in the annuity contract. I fail to understand why the plaintiff, who was, after all, a party to the settlement agreement, should not be bound by its terms. The majority duclcs this issue with the offhand statement that “the only relevant antiassignment provision in this case is the one in the annuity contract, the only agreement to which [the defendant Safeco Life Insurance Company] is a party.” The majority fails to explain, however, why that is the case.


author: NORCOTT, J.

text:
    STATE OF CONNECTICUT v. ANDREW ALEXANDER
    (SC 16031)
    McDonald, C. J., and Norcott, Katz, Sullivan and Vertefeuille, Js.

      Argued May 25
    officially released August 15, 2000

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Nancy Dolinsky, assistant state’s attorney, for the appellant (state).

      Monte P. Radler, supervisory assistant public defender, with whom, on the brief, were Neal Cone, assistant public defender, and Christine J. Haave, special public defender, for the appellee (defendant).
   Opinion

NORCOTT, J.

After a jury trial, the defendant, Andrew Alexander, was convicted of sexual assault in the fourth degree in violation of General Statutes § 53a-73a and risk of injury to a child in violation of General Statutes (Rev. to 1991) § 53-21. The defendant appealed the judgment of conviction to the Appellate Court claiming that: (1) the state’s closing argument infringed on his constitutional right to be present during trial; and (2) the state committed prosecutorial misconduct during its closing argument, thereby depriving the defendant of his due process right to a fair trial. State v. Alexander, 50 Conn. App. 242, 246, 718 A.2d 66 (1998). The Appellate Court agreed with both claims, reversed the defendant’s judgment of conviction, and remanded the case for a new trial. Id., 260. We granted the state’s petition for certification to appeal limited to the following issues: (1) “Whether, under the circumstances of this case, the state violated the defendant’s constitutional right to be present at trial?” and (2) “Whether the state’s remarks to the jury amounted to prosecutorial misconduct?” State v. Alexander, 247 Conn. 927, 719 A.2d 1169 (1998). We answer the first question in the negative and the second question in the affirmative, and, accordingly, we reverse the judgment of the Appellate Court in part and affirm it in part.

The following relevant facts that the jury reasonably could have found are aptly set forth in the Appellate Court’s opinion. “At the time of trial, the victim, C, was twelve years old and in the seventh grade. The victim lived in Stamford with her mother, Kendra, a younger brother and twin sisters. The victim was in the second or third grade when she first met the defendant. The defendant was Kendra’s boyfriend and the father of the victim’s twin sisters. The defendant met Kendra in the fall of 1989. Kendra became pregnant by the defendant in the summer of 1990, and they agreed that the defendant would become involved as a father to their offspring. Because of his work schedule, the defendant maintained a residence in New York City. He resided with Kendra primarily on weekends after she became pregnant.

“At first, the victim liked the defendant. He was nice to her, took her to a park, gave her money for ice cream and never punished or hit her. About the time the victim was eight, the defendant began to abuse her sexually. He would enter her bedroom at night when the room was dark and, if she was asleep, would touch her to awaken her. The defendant would get into her bed, take off her panties and put his finger into her vagina, which hurt, and felt like a knife cutting into her. When C would tell the defendant to stop, he complied. He would also push up her nightshirt and touch her chest as well.

“In February, 1993, during school vacation when C was nine, she went to Massachusetts to visit her paternal grandmother. When her grandmother asked how the defendant was treating her, C said that the defendant did not treat her right and disclosed the abuse to her, saying that it had gone on since she was about eight. On her way back to Stamford, C told her [biological] father of the abuse.

“On March 2, 1993, C was interviewed by Patricia Nelson of the Stamford Child Guidance Center. An audiotape was made of the interview and played for the jury. In the interview, C stated that the abuse began when she was eight, toward the end of the year. She said that the defendant had rubbed her vaginal area, but she was afraid that the defendant would be angry if she provided more detail and she did not want to get him in trouble.* ** . . . The victim also spoke about the abuse with Marie Williams, a social worker at the department of children and families (department).

“At trial, the state called the victim’s father, Officer Martin Treadway of the Stamford police department, Nelson, Williams, and the victim’s grandmother primarily as constancy of accusation witnesses. The state also called Nelson, Williams, and Stephen Spitz, a psychologist and consultant for the department, as expert witnesses. The defendant testified and denied ever abusing the victim. In addition, the defendant elicited character testimony from ten witnesses.” State v. Alexander, supra, 50 Conn. App. 244-46. Additional facts and history will be set forth as needed.

I

The first certified issue on appeal is whether the state violated the defendant’s constitutional right to be present at trial. The Appellate Court found that the prosecutor, in her closing arguments, inappropriately pointed out to the jury that the defendant was the only witness who had heard the testimony of every other witness and that this gave him the ability to tailor his testimony to coincide with that of the other witnesses. Id., 252. The state argues that this conduct is permissible under Portuondo v. Agard, 529 U.S. 61, 120 S. Ct. 1119, 146 L. Ed. 2d 47 (2000), a recent United States Supreme Court decision. We agree with the state.

The following additional facts are relevant to the resolution of this claim. The prosecutor offered, in pertinent part, the following summation to the jury: “Who is best able to fabricate a complicated story designed to sway a jury? Your final decision must ultimately be based on whom you believe. The victim ... or the defendant .... Now, you may recall that all the witnesses were sequestered. And, that was so they couldn’t hear what the other witnesses were saying so they couldn’t tailor their testimony to each other’s testimony. So that they couldn’t contradict each other. But there was one witness who wasn’t sequestered. There was one witness who heard everything. And, that was [the defendant], who has a built-in bias in the outcome of this case by virtue of the fact that he’s the defendant.” In rebuttal to the defendant’s closing argument, the prosecutor added: “When you consider the credibility of the defendant’s testimony, keep in mind that of all the witnesses here, he’s the most obviously biased and interested one. He’s the one who has the motive to distort the truth and fabricate the story. Think about it.”

The Appellate Court determined that the prosecutor’s comments violated the defendant’s sixth amendment right to be present at trial. State v. Alexander, supra, 50 Conn. App. 252. In reaching that conclusion, the Appellate Court relied on this court’s decision in State v. Cassidy, 236 Conn. 112, 127-28, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996), in which we held that a defendant’s sixth amendment right to be present at trial is violated when a prosecutor refers to a defendant’s general opportunity to tailor his testimony to coincide with that of other witnesses. We now conclude, however, that Portuondo v. Agard, supra, 529 U.S. 61 requires us to overrule Cassidy and reverse the judgment of the Appellate Court on this issue.

In Portuondo, the defendant similarly claimed that the prosecutor’s summation, which referred to the defendant’s presence during the trial and ability to fabricate or tailor his testimony, unlawfully burdened his sixth amendment right to be present at trial and to be confronted with the witnesses against him. Id., 64. The defendant argued that the court should extend the rationale of Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965), wherein the court held that a defendant’s failure to testify could not be used against him as an inference of guilt. Portuondo v. Agard, supra, 529 U.S. 65. The court declined to extend Griffin to the facts in Portuondo. Id.

First, the court in Portuondo explained, “[w]hat we prohibited the prosecutor from urging the jury to do in Griffin was something the jury is not permitted to do.” Id., 67. Neither a jury nor a prosecutor may use a defendant’s silence as an inference of guilt. Id. Further, it is reasonable to expect a jury not to infer such guilt since “the inference of guilt from silence is not always ‘natural or irresistible.’ ” Id., quoting Griffin v. California, supra, 380 U.S. 615. A defendant, for example, may choose not to testify for a variety of reasons, including “fear that he will be made to look bad by clever counsel, or fear that his prior convictions will prejudice the jury.” (Internal quotation marks omitted.) Portuondo v. Agard, supra, 529 U.S. 67.

On the contrary, however, “it is natural and irresistible for a jury, in evaluating the relative credibility of a defendant who testifies last, to have in mind and weigh in the balance the fact that he heard the testimony of all those who preceded him.” Id., 67-68. The court further noted that “inferring opportunity to tailor from presence is inevitable, and prohibiting that inference (while simultaneously asking the jury to evaluate the veracity of the defendant’s testimony) is demanding the impossible . . . .” Id., 68 n.1. Thus, when weighing a defendant’s credibility, a jury is “perfectly entitled” to consider that the defendant had the opportunity to tailor his testimony to conform to that of the other witnesses. Id., 68.

Second, unlike Griffin, wherein the court prohibited the inference of guilt from silence, the prosecutor’s comments in Portuondo questioned the defendant’s credibility as a witness and were therefore “in accord with our longstanding rule that when a defendant takes the stand, ‘his credibility may be impeached and his testimony assailed like that of any other witness.’ ” Id., 69, quoting Brown v. United States, 356 U.S. 148, 154, 78 S. Ct. 622, 2 L. Ed. 2d 822 (1958).

Therefore, by exercising his fifth amendment right to testify on his own behalf, it is axiomatic that a defendant opens the door to comment on his veracity. “It is well established that once an accused takes the stand and testifies his credibility is subject to scrutiny and close examination. State v. Carter, 189 Conn. 631, 640, 458 A.2d 379 (1983). A defendant cannot both take the stand and be immune from impeachment. . . . An accused who testifies subjects himself to the same rules and tests which could by law be applied to other witnesses. State v. Palozie, 165 Conn. 288, 298, 334 A.2d 468 (1973).” State v. McClendon, 199 Conn. 5, 12, 505 A.2d 685 (1986). Finally, the Supreme Court has noted that when a defendant “assumes the role of a witness, the rules that generally apply to other witnesses—rules that serve the truth-seeking function of the trial—are generally applicable to him as well.” Perry v. Leeke, 488 U.S. 272, 282, 109 S. Ct. 594, 102 L. Ed. 2d 624 (1989).

It has been established that “the Constitution does not forbid every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights.” (Internal quotation marks omitted.) Jenkins v. Anderson, 447 U.S. 231, 236, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980). Similarly, “the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); see also State v. Bonello, 210 Conn. 51, 55, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S. Ct. 2103, 104 L. Ed. 2d 664 (1989); State v. Jarzbek, 204 Conn. 683, 693, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988). Hearsay statements by an unavailable declarant may be admitted into evidence if they are deemed sufficiently rehable; Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980); the videotaped testimony of a child victim taken outside the physical presence of the defendant is also admissible when its admittance will enhance the truth-seeking function of the criminal trial; State v. Bonello, supra, 61; and a defendant may be deprived of his right to be present at trial if his behavior becomes intolerably disruptive. Illinois v. Allen, 397 U.S. 337, 344, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970); Sekou v. Warden, 216 Conn. 678, 696, 583 A.2d 1277 (1990). Since it is the search for truth that is the primary object of the confrontation clause; see Ohio v. Roberts, supra, 65-66; California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970); Douglas v. Alabama, 380 U.S. 415, 418-20, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965); State v. Bonello, supra, 59-61; none of these actions denied the respective defendants their right to confrontation. It is, therefore, illogical to permit abrogation of a defendant’s right to be present at trial based on the state’s countervailing interests, yet disallow comment on the defendant’s presence when the countervailing state interest relates directly to a crucial aspect of the truth-seeking process; i.e., the jury’s ability to evaluate the credibility of the witnesses.

We conclude that the prosecutor’s comments in the present case, which are nearly indistinguishable from those in Portuondo, do not infringe on the defendant’s fifth or sixth amendment rights. See Portuondo v. Agard, supra, 529 U.S. 64. The prosecutors in both cases simply asked the jury to consider the fact that the defendant was present during other testimony. It is only “natural” for a jury to consider this opportunity. “[I]t is . . . [quite impossible] for the juiy to evaluate the credibility of the defendant’s testimony while blotting out from its mind the fact that before giving the testimony the defendant had been sitting there listening to the other witnesses.” Id., 68. The comments did not invite the jury to draw an inference of guilt solely based on the defendant’s exercise of his constitutional right to be present at trial and confront the witness. It was proper for the prosecutor to request that the jury generally consider the defendant’s unique opportunity when determining the credibility of his testimony.

In sum, we hold that the prosecutor violated no federal constitutional rights by commenting on the defendant’s presence at trial and his accompanying opportunity to fabricate or tailor his testimony.

II

The second certified issue on appeal is whether certain of the state’s remarks to the jury amounted to prosecutorial misconduct. We agree with the Appellate Court’s conclusion that the relevant remarks were improper.

Excerpts from the prosecutor’s closing argument provide in relevant part: “[A] delay in reporting or inconsistencies has nothing to do with whether or not the victim is lying or telling the truth. And, that’s up for you to judge. . . . Child molesters don’t sexually assault their victim in front of witnesses. They wait until they’re alone, isolated. They pick out a vulnerable child, such as an eight year old asleep in her bed. . . . [A]n absence of physical injury indicates nothing. Think of David and Goliath. That’s another one on one contact where there was disparity of the size and power of the participants. The same disparity is found in almost every child sexual abuse case. The defendant is typically bigger, stronger, more experienced, better at verbal skills, and holds all the power in the relationship. The child, the victim, is small, weak, naive, inarticulate, and powerless. And must convince you people that her body has been violated. . . . You’ve probably all heard the saying ‘wisdom comes from the mouths of babes.’ Well, there’s a reason for that saying. Just because we have a twelve year old victim, who was eight at the time the incident occurred, recalling what happened to her when she was eight and nine in front of a room full of strangers, doesn’t mean we can’t depend on her word. Because we should depend on her word. And, why? I’ll tell you why. Common sense tells you that no one—no one would put herself through such an ordeal if nothing happened. . . . [The victim] knew when she came to court she had to tell the truth. And that’s what she did. . . . Remember [the victim] said, T think it happened in the Fall. I was eight.’ And, how does she remember she was eight? ‘[B]ecause I didn’t know him when I was seven.’ That’s how little kids think. They can’t make this wp. . . . Nor did she exaggerate. Nor did she have any motive to lie. . . . There’s no motive for her to lie. . . . [Y]ou’re supposed to believe that as a result of that comment [the victim] fabricated this whole incident to get back at him. I don’t know of that many eight or nine year olds that are that sophisticated to fabricate a story involving sexual abuse. . . . Now, what else could they say? That she fantasized this, made this all up in her head? Well, if you think an eight year old child would fantasize about a fifty year old man coming into her room at night and sticking his finger in her vagina, then you have a right to think that way. But, I know that you don’t think that way. Because I know that your common sense tells you that eight year old children don’t fantasize about that. . . . [The victim] suffered a lot of negative things after she disclosed. And, if she was lying, she would have changed her stoiy. . . . And, why didn’t she do it? Because she told, the truth.” (Emphasis added.)

The Appellate Court found that the prosecutor committed misconduct by: (1) rendering her opinion as to the credibility of the victim’s testimony; (2) referring to facts not in evidence; and (3) appealing to the passions and emotions of the jury. State v. Alexander, supra, 50 Conn. App. 257-58. The state argues that the remarks were taken out of context on appeal and reviewed under an incorrect standard. While we agree that the Appellate Court improperly placed the burden on the state to prove harmlessness, we find that this misallocation in itself was harmless. Accordingly, we affirm the judgment of the Appellate Court with respect to the second certified issue.

“We have long recognized the special role played by the state’s attorney in a criminal trial. ‘He is not only an officer of the court, like every other attorney, but is also a high public officer, representing the people of the State, who seek impartial justice for the guilty as much as for the innocent. ... By reason of his office, he usually exercises great influence upon jurors. His conduct and language in the trial of cases in which human life or liberty are at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice or resentment. If the accused be guilty, he should none the less be convicted only after a fair trial, conducted strictly according to the sound and well-established rules which the laws prescribe. While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury have no right to consider. ’ ” State v. Williams, 204 Conn. 523, 537-38, 529 A.2d 653 (1987), quoting State v. Ferrone, 96 Conn. 160, 168-69, 113 A. 452 (1921).

“In examining the prosecutor’s argument we must distinguish between those comments whose effects may be removed by appropriate instructions . . . and those which are flagrant and therefore deny the accused a fair trial.” (Citation omitted.) State v. Haskins, 188 Conn. 432, 457, 450 A.2d 828 (1982). “Prosecutorial misconduct may . . . occur during the course of closing argument. . . . Such argument may be, ‘in light of all of the facts and circumstances, so egregious that no curative instruction could reasonably be expected to remove [its] prejudicial impact.’ State v. Fullwood, 194 Conn. 573, 585, 484 A.2d 435 (1984).” (Citations omitted.) State v. Williams, supra, 204 Conn. 539.

To prove prosecutorial misconduct, the defendant must demonstrate substantial prejudice. State v. Richardson, 214 Conn. 752, 760, 574 A.2d 182 (1990); State v. Northrop, 213 Conn. 405, 421, 568 A.2d 439 (1990). In order to demonstrate this, the defendant must establish that the trial as a whole was fundamentally unfair and that the misconduct so infected the trial with unfairness as to make the conviction a denial of due process. Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986); State v. Williams, supra, 204 Conn. 539. When analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct, one must not focus solely on the conduct of the prosecutor, but instead, the fairness of the trial as a whole should be at the forefront of the inquiry. Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982); State v. Williams, supra, 539-40; State v. Couture, 194 Conn. 530, 562, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). Further, because the trial court has the best vantage point for assessing the propriety of the remarks in issue, its determination is entitled to deference. For that reason the defendant must prove that the court’s refusal to grant a new trial or give an explicit curative instruction was a clear abuse of discretion. State v. Northrop, supra, 422 n.13; State v. Fullwood, supra, 194 Conn. 584; State v. Glenn, 194 Conn. 483, 493, 481 A.2d 741 (1984).

In order to determine whether prosecutorial misconduct amounts to a denial of due process, this court, in conformity with courts in other jurisdictions, has established a list of factors to consider. State v. Williams, supra, 204 Conn. 540. These factors include the extent to which the defendant invited the conduct; State v. Fullwood, supra, 194 Conn. 585; State v. Falcone, 191 Conn. 12, 23, 463 A.2d 558 (1983); the severity of the misconduct; see United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981), cert. denied, 456 U.S. 989, 102 S. Ct. 2269, 73 L. Ed. 2d 1284 (1982); the frequency of the misconduct; State v. Couture, supra, 194 Conn. 562-63; the centrality of the misconduct to the critical issues in the case; Hawthorne v. United States, 476 A.2d 164, 172 (D.C. App. 1984); the strength of the curative measures adopted by the court; United States v. Modica, supra, 1181; Harris v. United States, 402 F.2d 656, 657 n.1 (D.C. Cir. 1968); State v. Doehrer, 200 Conn. 642, 654, 513 A.2d 58 (1986); and the strength of the state’s case. See United States v. Modica, supra, 1181; State v. Couture, supra, 564; State v. Glenn, supra, 194 Conn. 492. We will discuss each individual claim of prosecutorial misconduct seriatim.

A

Personal Expression of Opinion

We agree with the Appellate Court that the prosecutor improperly expressed her opinion of the victim’s credibility and vouched for her witness. It is well established that a prosecutor may not express her own opinion, either directly or indirectly, as to the credibility of a witness or the guilt of the defendant. See, e.g., State v. Oehman, 212 Conn. 325, 336, 562 A.2d 493 (1989); State v. Williams, supra, 204 Conn. 541. “Such expressions of personal opinion are a form of unsworn and unchecked testimony. . . . These expressions of opinion are particularly difficult for the jury to ignore because of the special position held by the prosecutor.” State v. Williams, supra, 541-43. A prosecutor’s voucher for a witness is particularly dangerous for two reasons. First, such comments may convey the impression that the prosecutor is aware of evidence supporting charges against the defendant of which the jury has no knowledge. See United States v. Young, 470 U.S. 1, 18, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985). Second, “the prosecutor’s opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government’s judgment rather than its own view of the evidence.” Id., 18-19.

During the closing argument in the present case, the prosecutor expressed her own opinion, both directly and indirectly, as to the credibility of the victim’s testimony. The prosecutor implied that the victim testified truthfully because she is young and therefore honest. The summation further contended that no child would possibly make up a story regarding sexual abuse. These statements are improper vouchers for the victim’s credibility. Statements such as these are likely to sway a jury in favor of the prosecutor’s argument without properly considering the facts in evidence. This is especially significant in the present case, where the credibility of the victim and the defendant comprised the principal issue of the case. Improper comments on the part of the prosecutor regarding the veracity of one party over the other can easily skew a proper jury deliberation. Thus, we agree with the Appellate Court that the prosecutor’s comments were an inappropriate personal expression of opinion.

B

Comment on Facts Not in Evidence

We also conclude that the prosecutor improperly commented on facts not in evidence. “A prosecutor, in fulfilling his duties, must confine himself to the evidence in the record. State v. Binet, 192 Conn. 618, 631, 473 A.2d 1200 (1984). ‘[A] lawyer shall not . . . [a]ssert his personal knowledge of the facts in issue, except when testifying as a witness.’ ABA Model Code of Professional Responsibility DR 7-106 (C) (3) (1980). Statements as to facts that have not been proven amount to unsworn testimony, which is not the subject of proper closing argument. State v. Williams, supra, 204 Conn. 544.” State v. Williams, 41 Conn. App. 180, 185, 674 A.2d 1372, cert. denied, 237 Conn. 925, 677 A.2d 950 (1996).

In the present case, the prosecutor did not confine herself to the record. She explained to the jury, “[tjhat’s how little kids think,” without any evidence to support this assertion. She stated that children “can’t make this up . . . .” The summation suggested that a eight year old is not “sophisticated” enough to conjure up a story of sexual abuse, without any evidence supporting that contention. These are the principal issues set forth for the jury to determine on their own. It was, therefore, wholly improper for the prosecutor to insinuate the truthfulness of certain claims, thereby inducing the jury to review the case by means of facts not in evidence.

C

Appeal to Emotion

Lastly, we agree with the Appellate Court that the prosecutor’s argument inappropriately appealed to the emotions of the jury. An appeal to emotions, passions, or prejudices improperly diverts the juiy’s attention away from the facts and makes it more difficult for it to decide the case on the evidence in the record. State v. Williams, supra, 204 Conn. 545; State v. Couture, supra, 194 Conn. 562-64. An appeal to the emotions of the jury may arise from the use of personal and degrading epithets to describe the defendant. Hall v. United States, 419 F.2d 582, 587 (5th Cir. 1969); State v. Williams, supra, 545. Although a prosecutor may argue that the evidence supports the defendant’s guilt, he may not brand the defendant guilty with the use of such epithets. State v. Williams, supra, 545-46; State v. Couture, supra, 562. “When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal.” State v. Williams, supra, 546.

After a careful review of the record, we conclude that in the present case, the prosecutor’s comments during summation improperly appealed to the emotions, passions, and prejudices of the jury. By categorizing the contact between the “vulnerable . . . small, weak, naive” victim and the “bigger, stronger, more experienced” defendant as one of a “David and Goliath” type of relationship, the prosecutor elicited powerful feelings of disgust in the average juror. This behavior made it extremely difficult for the jury to focus on the actual facts in evidence in order to make a rational decision of whom to believe. In fact, while comments regarding “an eight year old child [fantasizing] about a fifty year old man coming into her room at night and sticking his finger in her vagina” are relevant to the issue at hand, they do prey on the jury’s vulnerability to such strong and negative imagery. These comments, therefore, worked to undermine the emotional neutrality of the jury. These comments fixated the jury’s attention on either irrelevant factors or on emotional responses that diverted its attention from the true issues of the case and, therefore, were improper.

In sum, we agree with the Appellate Court and the defendant that the prosecutor’s comments during summation “invited the jury to ignore the facts of the case and were so pervasive throughout the state’s summation that they infected the fairness of the entire trial.” State v. Alexander, supra, 50 Conn. App. 258-59. We also emphasize the fact that the improper comments were made during both the prosecutor’s initial summation and later rebuttal argument. Accordingly, this was not a case in which the defendant’s comments during closing argument invited the prosecutor’s comments in response. This factor contributes to the “pervasive” theme that is central to our decision. We further agree with the Appellate Court that the prosecutorial misconduct amounted to a violation of due process. Id., 259. As the Appellate Court stated: “[W]e do not believe that the misconduct was invited by any conduct or argument of the defense. We believe that the seriousness of the misconduct is reinforced by the frequency of its occurrence during the state’s closing argument. The improper comments directly addressed the critical issue in this case, the credibility of the victim and the defendant. There were no curative measures adopted, and the state’s case was not particularly strong in that it rested on the credibility of the victim.” Id. Accordingly, we agree with the Appellate Court’s conclusion that the prosecutorial misconduct denied the defendant his due process right to a fair trial. Id., 260.

The judgment of the Appellate Court is reversed with respect to its conclusion that the state violated the defendant’s constitutional right to be present at trial; the judgment is affirmed in all other respects.

In this opinion the other justices concurred.

       General Statutes § 53a-73a (a) provides in relevant part: “A person is guilty of sexual assault in the fourth degree when: (1) Such person in1 entionally subjects another person to sexual contact who is (A) under fifteen years of age . . .

       General Statutes (Rev. to 1991) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       “The trial court imposed a total effective sentence of five years, suspended after one year, with five years probation and special conditions. The court denied the defendant’s motion to open the judgment and motion to correct sentence.” State v. Alexander, 50 Conn. App. 242, 246, 718 A.2d 66 (1998).

       In accordance with General Statutes § 54-86e, and in order to protect the victim’s legitimate privacy interests, the victim’s name is not used in this opinion.

       “At trial, C explained that her testimony was different from her audiotape interview because “ ‘now that you get a chance to think about what happened, it all comes back to you. Most of it does.’ ” State v. Alexander, supra, 50 Conn. App. 245.

        Portuondo was decided after the Appellate Court had issued its decision in the present case.

       Both parties conceded at oral argument before this court that the trial court had not entered a sequestration order. The state did remark that even without a sequestration order in the record, it was clear at trial that all the witnesses were absent during testimony, and that only the defendant was present during all testimony.

       At trial, the defendant did not make the specific objection he raises on appeal. He therefore sought, and the Appellate Court granted, review under the doctrine articulated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The court explained that “[t]he defendant’s claim is reviewable because the record is adequate for review, and the claim implicates the defendant’s fundamental constitutional right to be present during his trial.” State v. Alexander, supra, 50 Conn. App. 248-49.

       We note that our decision in Cassidy was founded upon the protection afforded by the federal, and not the state, constitution. See State v. Cassidy, supra, 236 Conn. 120 n.9. In the present case, the defendant was afforded the opportunity to submit a supplemental brief on the issue of the state constitutional claim. To the extent that he did so, we are not persuaded by his argument.

       In its brief, the state suggests that this court adopt a mandatory instruction ensuring that the jury is aware that a defendant has a constitutional right to be present at trial. We decline to adopt such an instruction. We do, however, agree to an extent with Justice Stevens in his concurring opinion in Portuondo, wherein he noted that the court’s ruling does not “deprive States or trial judges of the power either to prevent such argument entirely or to provide juries with instructions that explain the necessity, and the justifications, for the defendant’s attendance at trial.” Portuondo v. Agard, supra, 529 U.S. 76. It may be necessary in particular circumstances for a trial court to remind a jury of a defendant’s constitutional right to be present at trial. We simply decline to require the instruction as mandatory in all instances.

       The state is correct in asserting that the Appellate Court improperly placed the burden on the state to prove harmless error. As both parties acknowledge, the burden properly lies with the defendant to prove substantial prejudice. See State v. Richardson, 214 Conn. 752, 760, 574 A.2d 182 (1990); State v. Northrop, 213 Conn. 405, 421, 568 A.2d 439 (1990).

       See footnote 7 of this opinion. Since there is no evidence in the record that supports the prosecutor’s statement that “all the witnesses were sequestered,” we must also conclude that the prosecutor improperly commented on a fact not in evidence regarding any sequestration order.