author: Covello, J. Glass, J.,

text:
    George Enquist v. General Datacom et al.
    (13971)
    Peters, C. J., Glass, Covello, Hull and Borden, Js.

      Argued December 11, 1990
    decision released March 19, 1991

      Jason M. Dodge, for the appellant (named defendant).

      T. Stevens Bliss, for the appellee (plaintiff).

      Robert G. Monstream, Andrew J. Hem and William P. Horan, Jr., legal intern, filed a brief for Peerless Insurance Company et al. as amici curiae.
   Covello, J.

This is an appeal from a decision of the compensation review division of the workers’ compensation commission. The sole issue presented is whether an employer, who has properly intervened in an action by an injured employee against a third party, may set off future compensation claims against the net proceeds that the employee thereafter recovers from the third party tortfeasor. We conclude that such a set off is permitted and therefore reverse the decision of the Appellate Court.

Examination of the record discloses the following: On February 27,1979, the plaintiff crushed the thumb of his left hand while working on a machine at his place of employment. On June 11, 1980, the plaintiff began a third party action against Burndy Corporation, the manufacturer of the machine. On July 7, 1980, the defendant, General Datacom, the plaintiffs employer, filed an intervening complaint in the third party action. On October 23, 1981, the plaintiff and General Data-com signed a voluntary workers’ compensation agreement awarding the plaintiff 20.3 weeks as a specific injury award resulting from a 25 percent loss of use of the nonmaster thumb. In September, 1984, the plaintiff and Burndy Corporation settled the third party action for $30,000, of which $2500 was paid to satisfy General Datacom’s lien. The plaintiff realized $16,556.50 from the settlement after payment of attorney’s fees and expenses.

Thereafter, the plaintiff filed for additional compensation from General Datacom based upon a subsequent increase in the percentage of disability to his thumb. The compensation commissioner, with whom the compensation review division thereafter agreed, concluded that General Datacom, as employer, had a continuing, offsetting lien against the $16,250 net proceeds paid to the plaintiff from the settlement of the third party action. The plaintiff appealed to the Appellate Court, which reversed the decision of the compensation review division. Enquist v. General Datacom, 21 Conn. App. 270, 572 A.2d 1048 (1990). We thereafter granted certification limited to the issue of whether an employer is entitled to a credit against future workers’ compensation benefits in an amount equal to the employee’s net recovery from a personal injury claim made against a third party tortfeasor.

Although the workers’ compensation statute does not specifically address reimbursement for as yet unknown future benefits, an employer’s future liability to pay compensation benefits following recovery from a third party tortfeasor has historically been linked to General Statutes § 31-293 (a) and its predecessors. “[This statute] provides, in substance, that an employee who sustains an injury arising out of and in the course of his employment, by reason of the fault and neglect of a third party, may claim compensation under the [Workers’ Compensation] Act without prejudice to his common-law right to sue the tort-feasor; that an employer who has paid, or by award become obligated to pay, compensation, may sue the tort-feasor in his own name, with a view to reimbursement; and that, if either sue, the other is entitled to notice and an opportunity to join in the action.” Rosenbaum v. Hartford News Co., 92 Conn. 398, 400-401, 103 A. 120 (1918).

Section 31-293 (a) farther provides for the apportionment between the injured employee and the employer of any recovery from a third party. The “claim of the employer ... [to the net proceeds from the recovery] shall take precedence over that of the injured employee . . . .” The statute further provides: “If the damages . . . are more than sufficient to reimburse the employer . . . the excess shall be assessed in favor of the injured employee.”

In 1951, the General Assembly amended § 31-293 (a), then General Statutes (Sup. 1951) § 1311b, to add the following language: “The rendition of a judgment in favor of the employee or the employer against such party shall not terminate the employer’s obligation to make further compensation, including medical expenses, which the compensation commissioner shall thereafter deem payable to such injured employee.” (Emphasis added.) This new provision was a response to our earlier holdings to the effect that a recovery against a third party that exceeded the compensation benefits paid, terminated absolutely an employer’s obligation to make further compensation payments. See Stavola v. Palmer, 136 Conn. 670, 73 A.2d 831 (1950); Mickel v. New England Coal & Coke Co., 132 Conn. 671, 47 A.2d 187 (1946); Rosenbaum v. Hartford News Co., supra. As a further addendum, however, the legislature provided that “the employer’s claim shall consist of (1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit, and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of such injury.” (Emphasis added.) It is noteworthy that under the amended statute, it is th e“ claim of the employer . . . [that] shall take precedence over that of the injured employee in the proceeds of such recovery.” (Emphasis added.) Further, the reenactment provided that “[i]f the damages, after deducting the employee’s expenses as provided above, shall be more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse [the employer] for * * * his claim, and the excess shall be assessed in favor of the injured employee.” (Emphasis added.) Thus, the 1951 amendment of § 31-293 (a), in an apparent tradeoff, made the employer liable for future compensation benefits, but gave the employer the right to immediate reimbursement for the present worth of future compensation payments to the extent that the future payments were known and formalized by a commissioner’s “award” prior to the disposition of the third party action.

What § 31-293 (a) does not address is the employer’s right to obtain reimbursement for compensation obligations unknown at the disposition of the third party action. While the 1951 amendment of § 31-293 (a) establishes that the employer is liable to pay future compensation payments and is entitled to the immediate reimbursement of future payments known at the disposition of the third party action, it is silent as to the employer’s right to a credit for unknown future benefits against the net proceeds of the third party action.

Prior to its 1951 amendment, this court held that the predecessor of § 31-293 (a) required that “if the employer has become obligated to pay compensation, but has not paid it, and the damages recovered [from a third party action] are greater than the amount of compensation the employer has become obligated to pay . . . the entire excess is directed to be assessed in favor of the injured employee, with the consequence of discharging the employer from his ascertained liability under the award. . . . [Section 31-293] either reimburses or discharges the employer out of the first moneys available for the payment of damages.” Rosenbaum v. Hartford News Co., supra, 401-402.

In its 1951 amendment, the legislature provided that an employer had a continuing obligation to provide compensation. The General Assembly, however, made no attempt to alter our earlier construction of the statute, as set forth in Rosenbaum, that an employer was discharged from his obligations to the extent of the excess moneys available from a third party recovery. In the absence of any express statutory language or legislative history suggesting that our precedent was to be overruled, we decline to read the 1951 amendment of this statute as eliminating an employer’s right to a credit to the extent that there are excess proceeds from a third party recovery.

We note that other states have enacted workers’ compensation statutes establishing precise mechanisms that address an employer’s right to reimbursement for unknown future benefits from the proceeds of third party actions. The General Assembly could have adopted one of these statutory mechanisms but elected not to do so despite our existing precedent that implicates a continuing credit against any excess proceeds from the third party action.

Finally, our conclusion that an employer is entitled to a credit for unknown future benefits against the net proceeds of a third party recovery comports with other well established principles of workers’ compensation law. One of the purposes of the workers’ compensation statute is “the avoidance of two independent compensations for the injury”; Uva v. Alonzy, 116 Conn. 91, 98, 163 A. 612 (1933); a proposition that we have recently reaffirmed. See Paternostro v. Edward Coon Co., 217 Conn. 42, 47-49, 583 A.2d 1293 (1991). If the plaintiff’s argument were to prevail, a claim made subsequent to the disposition of a third party action would result in the employee receiving compensation from both the third party wrongdoer and the employer. In the absence of explicit statutory language mandating such a result, we decline to adopt such a construction.

The judgment of the Appellate Court is reversed and the matter is remanded to that court with direction to render judgment affirming the decision of the compensation review division.

In this opinion Peters, C. J., and Borden, J., concurred.

Glass, J.,

with whom Hull, J., joins, dissenting. The majority holds that the silence of the legislature in connection with the enactment of General Statutes (Sup. 1951) § 1311b, which amended General Statutes (Sup. 1949) § 615a, both precursors of General Statutes § 31-293, validated the decisions of this court construing the language of the statute before the amendment to grant an employer an indefinite future credit against the net proceeds recovered by an employee from a tortfeasor in a third party action. See, e.g., Rosenbaum v. Hartford News Co., 92 Conn. 398, 103 A. 120 (1918). Because I disagree with the inference drawn by the majority from the legislature’s silence, if it can be viewed as such, I respectfully dissent.

While the majority considers certain quoted portions of § 1311b to be worthy of note, it fails to note that the new language added to § 615a by § 1311b included the following highlighted insertion into the existing provision governing the allocation of a third party recovery: “In the event that such employer and employee shall join as parties plaintiff in such action and any damages shall be recovered, such damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of such recovery . . . .” (Emphasis in original; emphasis omitted.) Furthermore, the language added by § 1311b included, for the first time, a precise definition of the “claim” of the employer that was to take precedence over that of the employee in a third party recovery: “For purposes of this section, the employer’s claim shall consist of (1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit, and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of such injury. ” (Emphasis in original; emphasis omitted.)

Before its amendment by § 1311b, § 615a merely stated that the employer's “claim,” without further adorning that term, “shall take precedence over that of the employee” for purposes of apportionment of a third party recovery. In the absence of any statutory language indicating the intended scope of an employer’s “claim,” the Rosenbaum court broadly construed that term to include a credit against an employee’s third party recovery for both ascertained and inchoate future compensation obligations. The court’s construction was “based on the legal relation of the parties as defined by the [statute]” as it existed prior to its amendment in 1951; Rosenbaum v. Hartford News Co., supra, 402; which it found to contemplate “not only the reimbursement of an employer who has paid compensation, but also his discharge from an ascertained or inchoate obligation to pay compensation, by the payment of damages directly to the injured employee. And since the [statute] expressly provides that the claim of the employer shall take precedence over that of the employee, the employer is entitled to have the first moneys so paid to the employee applied to the discharge of his obligation. "(Emphasis added.) Id., 403. Since the statute in effect at the time of Rosenbaum “[did] not take pains to deal explicitly with the problem of future benefits, but merely credited] the carrier for compensation paid, or compensation for which the carrier [was] liable to pay,” the conclusion reached in Rosenbaum was arguably “the correct holding,” i.e., “the excess of third-party recovery over past compensation actually paid stands as a credit against future liability of the carrier.” 2A A. Larson, Workmen’s Compensation Law § 74-31 (e), p. 14-471.

Unlike the ambiguous phraseology of § 615a, the language added to the statute by § 1311b “took pains” to deal with the problem of future benefits, and removed any doubts about the legislature’s intentions as to the nature and extent of an employer’s “claim.” First, as the majority notes, § 1311b imposed a continuing obligation upon employers to pay compensation to their injured employees even after the rendition of judgment in a third party action. Second, as noted above, § 1311b mandated that the employer’s claim that was to “take precedence over that of the injured employee” in the proceeds of a third party recovery “shall consist of” two components, one relating to compensation previously paid, and one relating to compensation to be paid in the future in satisfaction of the employer’s new continuing futyre obligation. “For purposes of [§ 1311b],” the future component of an employer’s claim, “as defined in [§ 1311b],” was unequivocally restricted to “an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of such injury.” (Emphasis omitted.) General Statutes § 1311b. Section 1311b, of course, was the only existing statutory provision that gave an employer any rights in his employee’s recovery from a third party tortfeasor, as § 31-293 does presently. The language added by § 1311b therefore filled the statutory void that led the Rosenbaum court to the sweeping conclusion that the statute “either reimburses or discharges the employer out of the first moneys available for the payment of damages.” Rosenbaum v. Hartford News Co., supra, 402.

In view of the explicit definition of an employer’s “claim” added to the statute by the 1951 amendment, a definition clearly at odds with the expansive judicial construction of that term espoused by the Rosenbaum court and its pre-1951 progeny, I cannot agree with the majority that when the legislature amended the statute, it “made no attempt to alter our earlier construction of the statute, as set forth in Rosenbaum, that an employer was discharged from his obligations to the extent of excess moneys available from a third party recovery.” “It is a well-recognized rule of statutory construction that the legislature is presumed to know all the existing statutes, the judicial interpretation of them, and the effect that its action or nonaction will have on them.” Mack v. Saars, 150 Conn. 290, 298, 188 A.2d 863 (1963); see Miller v. Eighth Utilities District, 179 Conn. 589, 593-94, 427 A.2d 425 (1980). “ ‘ “ ‘[I]t is always presumed to have intended that effect which its action or nonaction produces.’ ” ’ ” All Brand Importers, Inc. v. Department of Liquor Control, 213 Conn. 184, 197, 567 A.2d 1156 (1989). Rather than nonaction, the legislature took affirmative action in 1951 by promulgating an express definition of what an employer’s claim “shall consist of” for purposes of precedence over that of an employee in the proceeds of a third party recovery. The future component of that claim was unambiguously defined to the exclusion of any amount other than that “equal to the present worth of any probable future payments which he has by award become obligated to pay on account of such injury.” General Statutes § 1311b. Consequently, the action taken in 1951 appears to be a classic effort by the legislature to enlighten the judicial understanding of its intent by amending an ambiguous statute with language unmistakably manifesting its intent. “The legislature has the power to make evident to us that it never intended to provide a litigant with the rights that we had previously interpreted a statute to confer.” State v. Blasko, 202 Conn. 541, 558, 522 A.2d 753 (1987); see Lee v. Board of Education, 181 Conn. 69, 75, 434 A.2d 333 (1980).

Aside from the intent of the legislature inferable from its action in simultaneously confronting the problem of future benefits and curtailing the extent of an employer’s preferential claim to a future credit for such benefits in spite of judicial precedent to the contrary, it is an established tenet of statutory construction that when a statute specifically defines an operative term used within it, courts are bound to accept that definition. Plasticrete Block & Supply Corporation v. Commissioner, 216 Conn. 17, 27, 579 A.2d 20 (1990); Johnson v. Manson, 196 Conn. 309, 315, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986); Toll Gate Farms, Inc. v. Milk Regulation Board, 148 Conn. 341, 347, 170 A.2d 883 (1961); Danbury v. Corbett, 139 Conn. 379, 384, 94 A.2d 6 (1953); see also 1A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) § 20.08. The rationale underlying this rule is that the specific definition of a statutory term evinces the deliberate intent of the legislature to exclude what is not specifically included in the definition. See International Business Machines Corporation v. Brown, 167 Conn. 123, 134, 355 A.2d 236 (1974); Neptune Park Assn. v. Steinberg, 138 Conn. 357, 362, 84 A.2d 687 (1951). An analogous rule applies when the legislature designates by list or enumeration the items to which a statute refers, that is, the items listed or enumerated are intended to be exclusive. See White Oak Corporation v. Department of Transportation, 217 Conn. 281, 301, 585 A.2d 1199 (1991); Chairman v. Freedom of Information Commission, 217 Conn. 193, 200, 585 A.2d 96 (1991) (“[ejxpressio unius est exclusio alterius”); see also 2A J. Sutherland, supra, § 47.23. Both rules gather additional force when construing statutes, like §§ 1311b and 31-293, that are in derogation of the common law. See 2A J. Sutherland, supra; accord Warner v. Leslie-Elliott Constructors, Inc., 194 Conn. 129, 137, 479 A.2d 231 (1984). When it enacted § 1311b, the legislature expressly defined an employer’s “claim,” enumerated its components and preceded that enumeration with the mandatory term “shall.” See Todd v. Glines, 217 Conn. 1, 8, 583 A.2d 1287 (1991).

Applying these rules of construction to the unambiguous language of § 1311b, I am compelled to conclude that the legislature did not intend to permit an employer to assert an indefinite future credit against his injured employee’s third party recovery for anything other than the mandated “amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of such injury.” (Emphasis omitted). General Statutes (Sup. 1951) § 1311b. It is not the function of this court “ ‘to supply a statutory omission merely because we feel there is good reason to do so’ ”; American-Republican, Inc. v. Waterbury, 183 Conn. 523, 529, 441 A.2d 23 (1981); and “[tjhis is especially so where it appears that the omission was intentional. State v. Nelson, 126 Conn. 412, 416, 11 A.2d 856 [1940].” Bailey v. Mars, 138 Conn. 593, 598, 87 A.2d 388 (1952); Connecticut Light & Power Co. v. Walsh, 134 Conn. 295, 301, 57 A.2d 128 (1948). “In such a situation, the remedy lies not with the court but with the General Assembly.” Bailey v. Mars, supra.

The majority justifies its unwarranted departure from the boundaries of the definition added by § 1311b, and presently contained in § 31-293, on the ground that its decision comports with the equitable principle prohibiting two independent compensations to an employee for the same injury. While departure from an explicit statutory definition is warranted when necessary to avoid an irrational result that could not have been intended by the legislature; see Vernon Village, Inc. v. Carothers, 217 Conn. 130, 139-40, 585 A.2d 76 (1991); the majority has not explained why the possibility of an employee’s double recovery ensuing from adherence to the statutory definition of an employer’s “claim” is so irrational that it could not have been intended by the legislature. In fact, § 31-293 embodies a mechanism that sanctions just such a result when an employer fails to protect his reimbursement rights by intervening in his employee’s third party action in a timely fashion. See General Statutes § 31-293. We have not wavered in strictly enforcing this provision despite the inevitable consequence of an employee’s double recovery for the same injury. See Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 540-41, 582 A.2d 1174 (1990); Skitromo v. Meriden Yellow Cab Co., 204 Conn. 485, 489, 528 A.2d 826 (1987); Ricard v. Stanadyne, Inc., 181 Conn. 321, 323, 435 A.2d 352 (1980); Olszewski v. State Employees’ Retirement Commission, 144 Conn. 322, 325, 130 A.2d 801 (1957). By doing so, we have recognized, as has the legislature, that the prohibition against double recovery is not inviolate. “Although one purpose of § 31-293 is to avoid double recovery, it does not protect those who are less than vigilant in safeguarding their own legal rights.” Norwalk v. Van Dyke, 33 Conn. Sup. 661, 667, 366 A.2d 554, cert. denied, 172 Conn. 681, 364 A.2d 864 (1976). The prohibition against double recovery should not be invoked in this case to protect employers who fail to assert their rights to a future credit for the amount permitted by the statute in a timely manner.

Furthermore, the prohibition against double recovery should not be invoked for the benefit of such employers at the expense of injured employees who vigilantly pursue their rights against third party tortfeasors. An employee does not bring suit against a third party tortfeasor to ensure that his employer is reimbursed for his past or future compensation outlays. He sues the tortfeasor, rather, to collect damages to which he may be personally entitled under a common law tort theory of recovery, and which are unobtainable under the Workers’ Compensation Act (act). See Bartolotta v. United States, 276 F. Sup. 66, 70 (D. Conn. 1967), aff’d, 411 F.2d 115 (2d Cir. 1969). An award under the act ordinarily compensates an employee for the impairment to his wage earning capacity resulting from his injury. See 1 A. Larson, Workmen’s Compensation Law § 2.40, p. 10; 2 A. Larson, supra, § 57.11, p. 10-12, § 57.14 (a), p. 10-46; see also Ancona v. Norwalk, 217 Conn. 50, 55, 584 A.2d 454 (1991); Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 456,78 A.2d 339 (1951); Bassett v. Stratford Lumber Co., 105 Conn. 297, 303, 135 A. 574 (1926). Unlike a tort recovery, such an award offers little or no redress to the employee for the physical injury itself, the loss of functional ability or the pain and suffering accompanying the injury. Sherburne v. C. S. Mersick & Co., 35 Conn. Sup. 60, 62, 395 A.2d 351 (1977); see also 1 A. Larson, supra; 2 A. Larson, supra, § 57.11, p. 10-2. In other words, the act “does not pretend to restore to the [employee] what he has lost . . . 1 A. Larson, supra, § 2.50, p. 11.

Although an employee’s net recovery in a third party action under § 31-293 may also include damages for past and future economic losses over and above the minimum amounts authorized by the act; see Sherburne v. C. S. Mersick & Co., supra; a substantial amount of that recovery unquestionably represents sums to which the employee, alone, is entitled by virtue of the tort inflicted upon him. Yet, in disregard of the potential composition of such a recovery, the majority authorizes a “required” credit against the full amount of that recovery. The employee therefore loses the exclusive right to any amount of that recovery, and the employer enjoys a continued holiday from his otherwise extant future compensation obligations by periodically crediting that recovery, regardless of whether the credit taken exceeds that portion of the recovery representing probable future compensable expenses. Unless and until such expenses exceed the employee’s total recovery, the employer cannot lose. The employee confronted with improbable future compensable expenses, however, undoubtedly loses. He is forced to fund such expenses with sums potentially intended as recompense for his pain, suffering and other noneconomic losses resulting from his injuries. If he lacks the willpower to bank his recovery for the unexpected medical crisis, his future injuries, to the extent that the employer’s credit remains unused, could go untreated. This inequitable scenario certainly could be avoided by requiring employers, as contemplated by the statute, to ascertain probable future compensation payments by award at or before the conclusion of a third party action or settlement.

When faced with the choice as to who, as between employer and employee, should bear the financial risk of compensable future economic expenses improbable at the conclusion of a third party action or settlement, it would not have been altogether irrational for our legislature to have intended to tip the scales in a manner favorable to the financially inferior employee. “The purpose of workmen’s compensation law is to provide for the workman, and it is presumed that the General Assembly acted with the knowledge that the objective in enacting such legislation was to protect the employee.” Going v. Cromwell Fire District, 159 Conn. 53, 59, 267 A.2d 428 (1970); see Klapproth v. Turner, 156 Conn. 276, 281, 240 A.2d 886 (1968). In fact, the legislative history discloses that it was this precise objective that the General Assembly intended to achieve when it enacted § 1311b. The record of the discussions on the floor of the House of Representatives and before the labor committee reveals that § 1311b was enacted along with numerous other amendatory provisions designed to provide additional protections “for 750,000 workers of the state of Connecticut.” Remarks of Representative Anthony Miller, 4 H.R. Proc., Pt. 5, 1951 Spec. Sess., p. 1957; see generally Public Acts 1951, No. 354. This benevolent goal is reflected in the statement of purpose of the bill that contained the language ultimately added to the statute by § 1311b: “To extend and increase the benefits of the Workmen’s Compensation Law.” S. Bill 14 (1951 Sess.).

Consistent with this objective, and of considerable significance for our current purposes, the legislative history further indicates that during the same session that the draft version of § 1311b, Senate Bill 14, § 2 (1951 Sess.), was considered and passed by both houses of the legislature, the legislature had before it two other companion bills containing proposed amendatory language that, if approved, effectively would have codified the indefinite future credit principle announced in Rosenbaum. See H. Bill 808, § 3 (1951 Sess.); S. Bill 444, § 3 (1951 Sess.). That language, reproduced in the margin, is strikingly similar to the language of the New York version of § 31-293 in force in 1951, also reproduced in the margin, which the majority correctly identifies as a statute that grants to employers the indefinite right to reimbursement for unknown future benefits from the proceeds recovered by an employee in a third party action. House Bill 808 was referred at the end of the 1951 legislative session to the labor committee, where it died. See H. Jour., Jan. 26,1951, p. 200. After receiving an unfavorable report from the labor committee, Senate Bill 444 was debated on the floor of the Senate and voted down. See S. Jour., May 15,1951, p. 603. “[T]he rejection of an amendment indicates that the legislature does not intend the bill to include the provisions embodied in the rejected amendment.” 2A J. Sutherland, supra, § 48.18. Accordingly, the rejection of the amendments proposed by these bills in favor of a bill devoid of the unacceptable language is persuasive evidence, in addition to the intent of the legislature expressed in the clear language of § 1311b, that the legislature did not intend the future component of an employer’s claim to extend beyond what was specified in § 1311b to encompass an indefinite future credit as permitted by this court in Rosenbaum.

In sum, all textual, historical and policy evidence of the legislature’s intent in enacting § 1311b consistently point to the same conclusion: that the legislature intended to supplant the broad pre-1951 judicial precedent with a narrowly formulated definition of the future component of an employer’s “claim” that would accrue to the benefit of the working population of this state. Adherence to that definition today would serve the same viable purpose by requiring employers, as contemplated by the statute, to ascertain their claims to a credit for “the present worth of any probable future payments” at or before the conclusion of a third party action or settlement and secure the commissioner’s approval of such claims by award. General Statutes § 31-293. An employee could thus obtain a fair and final determination of the amount of his third party recovery that represents probable future compensation and must be reserved for that purpose, and the amount that he, exclusively, is entitled to use as he sees fit. Should improbable future compensable expenses arise in excess of an employer’s credit, the burden of making compensation for such expenses would be borne by the employer, thereby “lifting from the shoulders of unfortunate victims of industrial mishaps and their dependents some measure of the resulting burden, and casting it upon the industry which occasioned it and, through that industry, upon society at large. It is not the immediate employer who, by this procedure, ultimately bears the burden that he is in the first instance made to assume. In its final distribution society bears it.” Piccinim v. Connecticut Light & Power Co., 93 Conn. 423, 429, 106 A. 330 (1919). Construing § 31-293 in accordance with its plain language would both further these socio-economic and humanitarian goals and adequately protect the reimbursement rights of an employer who is vigilant in protecting his own rights. If “the statute in its present form is apt to work an injustice, that is something for the legislature to cure. It does not require modification of the terms of the statute by the courts for the sake of accomplishing what might appear to be justice.” General Tires, Inc. v. United Aircraft Corporation, 143 Conn. 191, 196, 120 A.2d 426 (1956).

Finally, we should not stray from the plain language of § 31-293 merely because the workers’ compensation commissioner, in his practice, has obfuscated the manifest intent of the legislature by adhering to our superseded precedents. See Nichols v. Warren, 209 Conn. 191, 203, 550 A.2d 309 (1988); accord Quinnipiac Council, Boy Scouts of America, Inc. v. Commission on Human Rights & Opportunities, 204 Conn. 287, 295, 528 A.2d 352 (1987) (agency interpretation of statute not previously subjected to judicial scrutiny not entitled to deference); see also Beauchesne v. Nimmo, 562 F. Sup. 250, 256 (D. Conn. 1983) (agency interpretation inconsistent with legislative intent manifested in plain language of statute not entitled to deference). While the long-standing interpretation placed on a statute by the agency charged with its enforcement is ordinarily entitled to great deference, “this deference is constrained by our obligation to honor the clear meaning of a statute, as revealed by its language, purpose, and history.” International Brotherhood of Teamsters v. Daniel, 439 U.S. 551, 567 n.20, 99 S. Ct. 790, 58 L. Ed. 2d 808 (1979); accord Downer v. Liquor Control Commission, 134 Conn. 555, 561, 59 A.2d 290 (1948) (agency’s long-standing yet erroneous interpretation of statute attributable to “misunderstanding on [its] part”). Courts must not “ ‘rubber-stamp . . . administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the [legislative] policy underlying a statute.’ ” (Citation omitted.) Bureau of Alcohol, Tobacco & Firearms v. Federal Labor Relations Authority, 464 U.S. 89, 97, 104 S. Ct. 439, 78 L. Ed. 2d 195 (1983). “If the intent of [the legislature] is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of [the legislature].” Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984); see Transbrasil S.A. Linhas Aereas v. Department of Transportation, 791 F.2d 202, 206-207 (D.C. Cir. 1986).

For the above reasons, I would affirm the judgment of the Appellate Court.

       At the time of the commissioner’s award General Statutes § 31-308 (b) provided in relevant part: “With respect to the following-described injuries the compensation, in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation, shall be sixty-six and two-thirds per cent of the average weekly earnings of the injured employee, but in no case more than the maximum weekly benefit rate set forth in section 31-309, or less than twenty dollars weekly ... (8) for the complete and permanent loss of, or loss of the use of the thumb on the master hand, ninety-five weeks, for the thumb on the other hand, eighty-one weeks .... If the injury consists of the loss of a substantial part of a member resulting in a permanent partial loss of the use of a member, or if the injury results in a permanent partial loss of function, the commissioner may, in his discretion, in lieu of other compensation, award to the injured person such a proportion of the sum herein provided for the total loss of, or the loss of the use of, such member or for incapacity or both as represents the proportion of total loss or loss of use found to exist, and any voluntary agreement submitted in which the basis of settlement is such proportionate payment may, if otherwise conformable to the provisions of this chapter, be approved by the commissioner in his discretion.”

       General Statutes § 31-293 (a) provides in relevant part: “When any injury for which compensation is payable under . . . this chapter has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages . . . the injured employee may proceed at law against such person to recover damages for such injury .... If . . . any damages are recovered, such damages shall be so apportioned that the claim of the employer . . . shall take precedence over that of the injured employee in the proceeds of such recovery, after the deduction of reasonable and necessary expenditures, including attorneys’ fees, incurred by the employee in effecting such recovery. The rendition of a judgment in favor of the employee or the employer against such party shall not terminate the employer’s obligation to make further compensation, including medical expenses, which the compensation commissioner thereafter deems payable to such injured employee. If the damages, after deducting the employee’s expenses . . . are more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse him for his claim, and the excess shall be assessed in favor of the injured employee. For the purposes of this section the employer’s claim shall consist of (1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of such injury. ...”

       The legislative history indicates that the General Assembly specifically addressed the effect of Supreme Court precedent on other areas of the Workers’ Compensation Act but nowhere indicates an intent to alter the employer’s right to a credit against the proceeds of third party recoveries.

       See, e.g., New York Worker’s Compensation Law § 29 (1990).

       “If the statute does not take pains to deal explicitly with the problem of future benefits, but merely credits the carrier for compensation paid, or compensation for which the carrier is liable, the correct holding is still that the excess of third party recovery over past compensation actually paid stands as a credit against future liability of the carrier.” 2A A. Larson, Workmen’s Compensation Law § 74.31 (e), p. 14-471.

       “The policy of avoiding a double recovery is a strong one, and has on occasion been invoked to override a result that might be thought required by a literal or technical interpretation of statutes . . . .” 2A A. Larson, Workmen’s Compensation Law § 71.21, p. 14-16.

       The practical construction placed on General Statutes § 31-293 since the 1951 amendment lends further support to our .conclusion. We recognize that workers’ compensation law is practiced to a large extent by a specialized bar—both claimants’ and insurers’. Legislative changes are often made at the behest of the principal economic constituencies which are the principal participants in the system—labor unions and the business and insurance community. Moreover, the commissioners, both at the hearing and appellate levels, who adjudicate workers’ compensation disputes have, by virtue of their day-to-day experience, a large measure of legal expertise in the area.
      It does not appear to be disputed that, until now, none of these actors understood the 1951 amendment to have altered the long-standing meaning of § 31-293 in the way suggested by the plaintiff. That understanding is reflected in the published commentary by a practitioner in the field: “If the employer is already obligated to make future payments and the present worth of those payments were used to calculate the employer’s reimbursement claim, such payments must continue. If there is not a present obligation to make future payments, the employer is generally held to be released, pro tanto up to the amount that the injured employee actually recovered. Once the employee’s claim for compensation benefits amounts to a sum greater than the amount recovered by the employee in the third party suit, the employer’s liability for compensation payments and medical benefits commences again. This is generally referred to as a ‘moratorium’ on the collection of workers’ compensation benefits.” J. Asselin, Connecticut Workers’ Compensation Practice Manual (1985) p. 277.
      If the 1951 amendment had been intended to change the preexisting credit system in the way claimed by the plaintiff, we would not have expected forty years of acquiescence to it by those parties and interests most affected and most familiar with that system. Yet the practical construction of forty years has been fully consistent with such acquiescence.

       General Statutes (Sup. 1951) § 1311b of the Workmen’s Compensation Act provided: “LIABILITY OF THIRD PERSONS, HOW ENFORCED AND APPORTIONED BETWEEN EMPLOYER AND employee. When any injury for which compensation is payable under the provisions of this chapter shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of such injured employee against such other person, but such injured employee may proceed at law against such person to recover damages for such injury; and any employer having paid, or by award having become obligated to pay compensation under the provisions of this chapter, may bring an action against such other person to recover any amount that he has paid or by award has become obligated to pay as compensation to such injured employee. If either such employee or such employer shall bring such action against such third person, he shall forthwith notify the other, in writing, by personal presentation or by registered mail, of such fact and of the name of the court to which the writ is returnable, and such other may join as a party plaintiff in such action within thirty days after such notification, and, if such other shall fail to join as a party plaintiff, his right of action against such third person shall abate. In the event that such employer and employee shall join as parties plaintiff in such action and any damages shall be recovered, such damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of such recovery, after the deduction of reasonable and necessary expenditures, including attorneys’fees, incurred by the employee in effecting such recovery. The rendition of a judgment in favor of the employee or the employer against such party shall not terminate the employer’s obligation to make jurther compensation, including medical expenses, which the compensation commissioner shall thereafter deem payable to such injured employee. * * * If the damages, after deducting the employee’s expenses as provided above, shall be more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse him for * * * his claim, and the excess shall be assessed in favor of the injured employee. * * * No compromise with such third person by either employer or employee shall be binding upon or affect the rights of the other, unless assented to by him. For the purposes of this section, the employer’s claim shall consist of(l) the amount of any compensation which he has paid on account of the injury which is the subject of the suit, and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of such injury. The word ‘compensation,’ as used in this section, shall be construed to include not only incapacity payments to an injured employee and payments to the dependents of a deceased employee, but also sums paid out for surgical, medical and hospital services to an injured employee and the five hundred dollar burial fee provided by law.” (Emphasis in original.)
      General Statutes (Sup. 1949) § 615a of the Workmen’s Compensation Act provided: “liability of third persons, how enforced and apportioned between employer and employee. When any injury for which compensation is payable under the provisions of this chapter shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of such injured employee against such other person, but such injured employee may proceed at law against such person to recover damages for such injury; and any employer having paid, or by award having become obligated to pay, compensation under the provisions of this chapter, may bring an action against such other person to recover any amount that he has paid or by award has become obligated to pay as compensation to such injured employee. If either such employee or such employer shall bring such action against such third person, he shall forthwith notify the other, in writing, by personal presentation or by registered mail, of such fact and of the name of the court to which the writ is returnable, and such other may join as a party plaintiff in such action within thirty days after such notification, and, if such other shall fail to join as a party plaintiff, his right of action against such third person shall abate. In the event that such employer and employee shall join as parties plaintiff in such action and any damages shall be recovered, such damages shall be so apportioned that the claim of the employer shall take precedence over that of the injured employee, and, if the damages shall not be sufficient, or shall be only sufficient to reimburse him for the compensation which he has paid, or by award has become obligated to pay, with a reasonable allowance for an attorney’s fee to be fixed by the court and his costs, such damages shall be assessed in his favor; but, if the damages shall be more than sufficient to reimburse him, damages shall be assessed in his favor sufficient to reimburse him for the money he has paid, with a reasonable allowance for an attorney’s fee to be fixed by the court and his costs, and the excess shall be assessed in favor of the injured employee. Such allowance for an attorney’s fee shall include services rendered before the compensation commissioner, and in no case shall be less than the sum of twenty-five dollars. No compromise with such third person by either employer or employee shall be binding upon or affect the rights of the other, unless assented to by him. The word ‘compensation,’ as used in this section, shall be construed to include not only incapacity payments to an injured employee and payments to the dependents of a deceased employee, but also sums paid out for surgical, medical and hospital services to an injured employee and the * * * four hundred fifty dollar burial fee provided by law.” (Emphasis in original.)
      “[General Statutes] Sec. 31-293. liability of third persons to EMPLOYER AND EMPLOYEE. LIMITATIONS ON LIABILITY OF ARCHITECTS AND ENGINEERS, (a) When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of such injured employee against such other person, but such injured employee may proceed at law against such person to recover damages for such injury; and any employer having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such other person to recover any amount that he has paid or has become obligated to pay as compensation to such injured employee. If either such employee or such employer brings such action against such third person, he shall forthwith notify the other, in writing, by personal presentation or by registered or certified mail, of such fact and of the name of the court to which the writ is returnable, and such other may join as a party plaintiff in such action within thirty days after such notification, and, if such other fails to join as a party plaintiff, his right of action against such third person shall abate. In any case in which an employee brings an action against a third party in accordance with the provisions of this section, and the employer is a party defendant in such action, the employer may join as a party plaintiff in such action. The bringing of any such action against an employer shall not constitute notice to such employer within the meaning of this section. If such employer and employee join as parties plaintiff in such action and any damages are recovered, such damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of such recovery, after the deduction of reasonable and necessary expenditures, including attorneys’ fees, incurred by the employee in effecting such recovery. The rendition of a judgment in favor of the employee or the employer against such party shall not terminate the employer’s obligation to make further compensation, including medical expenses, which the compensation commissioner thereafter deems payable to such injured employee. If the damages, after deducting the employee’s expenses as provided above, are more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse him for his claim, and the excess shall be assessed in favor of the injured employee. No compromise with such third person by either employer or employee shall be binding upon or affect the rights of the other, unless assented to by him. For the purposes of this section the employer’s claim shall consist of (1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of such injury. The word ‘compensation,’ as used in this section, shall be construed to include not only incapacity payments to an injured employee and payments to the dependents of a deceased employee, but also sums paid out for surgical, medical and hospital services to an injured employee, the one-thousand-dollar burial fee provided by law and payments made under the provisions of sections 31-312 and 31-313.
      “(b) Notwithstanding the provisions of subsection (a) of this section, no construction design professional who is retained to. perform professional services on a construction project, or any employee of a construction design professional who is assisting or representing the construction design professional in the performance of professional services on the site of the construction project, shall be liable for any injury on the construction project for which compensation is payable under the provisions of this chapter, unless responsibility for safety practices is specifically assumed by contract. The immunity provided by this subsection to any construction design professional shall not apply to the negligent preparation of design plans or specifications. For the purposes of this subsection ‘construction design professional’ means (1) any person licensed as an architect under the provisions of chapter 390, (2) any person licensed, or éxempted from licensure, as an engineer under the provisions of chapter 391, or (3) any corporation organized to render professional services through the practice of either or both of such professions in this state.”

       See footnote 1, supra.

       The language of the provision construed in Rosenbaum v. Hartford News Co., 92 Conn. 398, 103 A. 120 (1918), 1915 Public Acts, chapter 288, § 2, is identical in pertinent part to the language of General Statutes (Sup. 1949), § 615a, the statute in effect prior to the 1951 amendment.

       “It is an appropriate legislative function to define the words contained in a statute .... For matters already settled by litigation the legislature obviously cannot by statute alter the interpretation of the law so as to review and reverse a judicial decision. However, the legislature can, for purposes of future legislation and for future applications of past legislation, eliminate uncertainties in the legislative intent and in the meaning of words by amending prior acts and by inserting construction and definition sections in the law.” 1A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) § 20.08.

       It would not be unduly burdensome to require an employer to protect his claim to a future credit against an employee’s third party recovery by a timely assertion of that claim in “an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of such injury.” General Statutes § 31-293. That the present value of probable future compensable expenses is susceptible to calculation is evident from the fact that in ordinary tort actions, future economic damages are routinely subjected to proof by statistical data. Employers could utilize such data to ascertain probable future compensation payments, subject to the approval of the commissioner, who presumably possesses special expertise in matters of valuation. The commissioner “shall have all powers necessary to enable him to perform the duties imposed upon him by the provisions of [the Workers’ Compensation Act].” General Statutes § 31-278.

       “Statements made on the floor of the house, although not controlling, may be judicially noticed and are a strong indication of legislative intent.” Manchester Sand & Gravel Co. v. South Windsor, 203 Conn. 267, 276, 524 A.2d 621 (1987).

       “Although there is earlier authority to the contrary . . . in recent years we have repeatedly approved references to testimony before legislative committees in order to shed light on legislative intent.” State v. Magnano, 204 Conn. 259, 273-74 n.8, 528 A.2d 760 (1987); see Mahoney v. Lensink, 213 Conn. 548, 559 n.15, 569 A.2d 518 (1990).

       On the floor of the House of Representatives, Representative Simon Cohen remarked: “It happens that there are responsible people representing the labor groups and representing members of the labor committee who have had conferences on this bill for several weeks. We are all trying to obtain proper legislation which will be for the benefit of all the workers of the State of Connecticut.” 4 H.R. Proc., Pt. 5, 1951 Spec. Sess., pp. 1957-58. Cohen noted further: “The bill was amended in the Senate to take out several abuses that we have had and we have put in provisions to prevent these abuses for the benefit of all the workers, not for four or five thousand of them.” Id., p. 1993. Cohen also stated: “[T]he labor committee and your Chairman and all the members have worked very diligently, very hard, to try to get progressive legislation on the books of the State of Connecticut providing for better conditions under Workmen’s Compensation .... We knew that [this bill] would be a very far advance as far as labor legislation in the State of Connecticut is concerned.” Id., pp. 1991-92. This theme was reiterated in the remarks of Representative Louis Shapiro: “The bill does make decided advancements in the benefits under workmen’s compensation law.” Id., p. 1996.
      Before the labor committee, the testimony given included favorable statements by all senators and representatives who spoke on the proposed legislation, and a labor representative of the C.I.O. Conn. Joint Standing Committee Hearings, Labor, 1951 Sess., pp. 31-35. Those who spoke in opposition to the proposed legislation were the Manufacturers’ Association of Connecticut, the Association of Casualty and Surety Companies, the Aetna Casualty and Surety Company, the U.S. Rubber Company, the Sargent Company and the Niles-Bement Pond Company. Id., pp. 35-36, 38, 44, 47-48.

       “The statement of purpose of a bill, on its introduction into the legislature, may be considered in determining its intent.” Manchester Sand & Gravel Co. v. South Windsor, 203 Conn. 267, 274-75, 524 A.2d 621 (1987).

       Substitute House Bill 1436, § 1 (1951 Spec. Sess.), was passed by the House of Representatives in lieu of Senate Bill 14, § 2 (1951 Sess.). See H. Jour., June 6, 1951, p. 854; S. Jour., May 15, 1951, p. 599.

       We have previously acknowledged the inferential value of failed attempts to amend existing laws with respect to the intent of the legislature to acquiesce in prevailing judicial interpretations of such laws. See McDonald v. Haynes Medical Laboratory, Inc., 192 Conn. 327, 334 n.13, 471 A.2d 646 (1984); Herald Publishing Co. v. Bill, 142 Conn. 53, 63, 111 A.2d 4 (1955); see generally 2A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) § 48.18; D. O’Connor, “The Use of Connecticut Legislative History in Statutory Construction,” 58 Conn. B.J. 422, 437-39 (1984).

       House Bill 808, § 3, and Senate Bill 444, § 3, each contained, in addition to language similar to that proposed by Senate Bill 14, § 2, the following proposed amendatory language: “In the event of a modification of an award made pursuant to this chapter, increasing the compensation previously awarded, the principal of any excess [third party] recovery, if any, received theretofore by the injured employee or his dependents shall be credited against such increase or excess. In the event of a modification of an award diminishing the compensation previously awarded, the employer shall forthwith pay to the injured employee or his dependents any additional amount of such excess to which the injured employee or his dependents shall be entitled by reason of such modification.” (Emphasis added.)

       The relevant language of the New York statute is as follows: “In the event of a modification of an award increasing the compensation previously awarded ... the principal of any of such excess [third party] recovery theretofore paid to such injured employee or his dependents shall be credited against such increase or such excess. In the event of a modification of an award ending or diminishing the compensation previously awarded . . . such . . . person . . . shall forthwith pay to such injured employee or his dependents, as the case may be, any additional amount of such excess recovery to which such injured employee or his dependents may be entitled
        by reason of such modification . . . (Emphasis added.) N.Y. Workmen’s Compensation Law § 29 (3) (McKinney 1946).

       While Sutherland cautions that “such rejection may occur because the bill already includes those provisions,” this admonition hardly applies in the present case since the language of Senate Bill 14, § 2, which was approved without the rejected language, is cast in both exclusionary and mandatory terms: “For purposes of this section, the employer’s claim shall consist of (emphasis in original; emphasis omitted); “the claim of the employer, as defined in this section, shall take precedence over that of the injured employee . . . .” (Emphasis added.) S. Bill 14, § 2 (1951 Sess.); see also H. Bill 1436, § 1 (1951 Spec. Sess.).

       In this respect, it should be noted that other than the mere assertions in the briefs of the appealing employer and the amici curiae insurers, the record contains no evidence that the commissioner has uniformly engaged in the practice of granting an indefinite future credit to employers for any period of time. See 2A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) § 49.05. The 1987 decision of the commissioner in this case was primarily based on his reading of pre-1951 judicial precedent, not long-standing practice. The compensation review division (CRD) upheld the commissioner’s decision on the basis of its earlier decision upholding an award of future credit in Love v. J. P. Stevens & Co., Compensation Review Divsion, Case No. 378 CRD-7-85, November 10, 1988. The articulated grounds for the CRD’s decision in Love were pre-1951 judicial precedent, the statements of commentators, and a 1986 decision of the CRD wherein “[a]ll parties . . . appeared to view the credit issue as being one of settled law.”


source: Caselaw Access Project

license: Public Domain

text:
    William Love v. J. P. Stevens and Company, Inc., et al.
    (13935)
    Peters, C. J., Glass, Covello, Hull and Borden, Js.
    Argued December 11, 1990
    decision released March 19, 1991

      Kevin J. Maher, for the appellants-appellees (defendants).

      John M. Creane, for the appellee-appellant (plaintiff).

      Robert G. Montstream, filed a brief for Peerless Insurance Company et al. as amici curiae.
   Covello, J.

This is an appeal from a decision of the compensation review division of the workers’ compensation commission. The sole issue presented is whether an employer, who has properly intervened in an action by an injured employee against a third party, may set off a claim for future medical compensation against the net proceeds that the employee recovered from the third party tortfeasor. We conclude that such a set off is permitted by General Statutes § 31-293 (a), the statute that establishes the liability of third persons to employers and employees under the Workers’ Compensation Act. We therefore reverse the judgment of the Appellate Court.

Examination of the record discloses the following. On March 22,1979, the plaintiff, William Love, suffered an injury to his right, master hand. In September, 1979, he underwent reconstructive surgery to increase the use of his hand. On August 29,1980, the workers’ compensation commissioner (commissioner) approved a voluntary agreement under which the defendant Liberty Mutual Insurance Company (Liberty Mutual) paid the plaintiff $34,718 for his permanent partial disability. Together with the disability compensation and other payments to the plaintiff, Liberty Mutual paid to the plaintiff a total of $48,011.92. After further medical evaluation, the commissioner recommended that the plaintiff have further reconstructive surgery. On October 14,1981, the commissioner made a finding and award of $40,000 for future surgery. Shortly after the accident, the plaintiff filed a third party tort action against the manufacturer of the machine that he was operating at the time of the accident. The defendants herein intervened in a timely manner as required by General Statutes § 31-293. On January 8,1982, the trial court rendered a stipulated judgment wherein the plaintiff received $250,000 from the third party tortfeasor. The defendants received $48,011.92 by way of reimbursement for workers’ compensation payments made to date. The plaintiff received $118,654.75 after legal fees and expenses had been deducted.

Thereafter, the defendants filed a motion for credit with the workers’ compensation commission arguing that they should be granted a credit of $118,654.75 against future medical expenses. The plaintiff opposed the motion on the ground that the commissioner had no authority to enter such an award. On January 7, 1985, the compensation commissioner, with whom the compensation review division thereafter agreed, concluded that the defendants were entitled to a credit to the extent of the plaintiff’s $116,664.51 third party award. The plaintiff appealed to the Appellate Court which reversed the decision of the compensation review division. The court concluded that although the defendants did not have a right to a $118,654.75 credit, they had effectively preserved their rights under § 31-293 (a) to the $40,000 sum already awarded by the commissioner. We granted certification limited to the issue of whether the commissioner is authorized to award the employer a credit against future workers’ compensation benefits in an amount equal to the employee’s net recovery from a personal injury claim made against a third party tortfeasor.

Disposition of this case is controlled to a large extent by our decision published this date in Enquist v. General Datacom, 218 Conn. 19, 587 A.2d 1029 (1991). In Enquist, we concluded that § 31-293 allows an employer to obtain a credit against unknown future compensation payments to the extent of a third party tort recovery less expenses and attorney’s fees.

In this case, we agree with the Appellate Court that the employer properly preserved his rights to reimbursement for the $40,000 in known future benefits at the conclusion of the third party action. Our decision in Enquist requires us to conclude furthermore that, with respect to the employer’s yet unknown compensation obligations, the employer is allowed to obtain a credit to the extent of the net third party recovery.

The plaintiff claims, however, that even if an employer is entitled to a credit to the extent of a third party recovery, such credit must be established by the court and not by the workers’ compensation commissioner because § 31-293 (a) does not expressly permit the workers’ compensation commissioner to establish the amount of the credit. The plaintiff argues, therefore, that it is beyond the authority of the commissioner to make apportionments for future benefits after the third party action is over. We disagree.

Section 31-293 (a) states explicitly that an employer has a right to reimbursement for “an amount equal to the present worth of any probable future payments which he has by award become obligated to pay . . . .” (Emphasis added.) Under our Workers’ Compensation Act only the commissioner has the authority to make compensation awards. We note in addition that it would be inefficient for parties to be compelled to return, perhaps repeatedly, to the trial court in order to make necessary adjustments to compensation awards after the conclusion of the third party action. Therefore, although § 31-293 (a) does not specifically state that the commissioner has the responsibility to calculate the credit for unknown future benefits, the act, in general, delegates this responsibility to the commissioner and, in the absence of express language to the contrary, we decline to hold otherwise.

The judgment of the Appellate Court is reversed and the matter is remanded to that court with direction to render judgment affirming the decision of the compensation review division.

In this opinion Peters, C. J., and Borden, J., concurred.

Glass, J.,

with whom Hull, J., joins, dissenting. The majority’s decision in this case is controlled by the majority decision in Enquist v. General Datacom, 218 Conn. 19, 587 A.2d 1029 (1991). In Enquist, I voiced my disagreement with the reasoning and the result reached by the majority in a dissenting opinion. I continue to adhere to the views expressed in my dissent in Enquist. Accordingly, in this case, I also respectfully dissent.

       General Statutes § 31-293 (a) provides in relevant part: “When any injury for which compensation is payable under . . . this chapter has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages . . . the injured employee may proceed at law against such person to recover damages for such injury .... If . . . any damages are recovered, such damages shall be so apportioned that the claim of the employer . . . shall take precedence over that of the injured employee in the proceeds of such recovery, after the deduction of reasonable and necessary expenditures, including attorneys’ fees, incurred by the employee in effecting such recovery. The rendition of a judgment in favor of the employee or the employer against such party shall not terminate the employer’s obligation to make further compensation, including medical expenses, which the compensation commissioner thereafter deems payable to such injured employee. If the damages, after deducting the employee’s expenses . . . are. more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse him for his claim, and the excess shall be assessed in favor of the injured employee. For the purposes of this section the employer’s claim shall consist of (1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of such injury. ...”

       The other defendant, J. P. Stevens and Company, Inc., was the plaintiffs employer.

       See, e.g., General Statutes § 31-278; Delgaizo v. Veeder-Root, Inc., 133 Conn. 664, 668, 54 A.2d 262 (1947).


author: Borden, J.

text:
    Aetna Life and Casualty Company v. Irene D. Bulaong et al. Gregory Bulaong v. Aetna Life and Casualty Company
    (14032)
    Peters, C. J., Shea, Glass, Covello and Borden, Js.

      Argued January 10
    decision released March 19, 1991

      Marjorie J. Berger, with whom was Kerry R. Callahan, for the appellant (Aetna Life and Casualty Company).

      Stuart M. Roth, with whom was Ann M. Siczewicz, for the appellees (Irene D. Bulaong et al. and Gregory Bulaong).
   Borden, J.

In these combined appeals, Aetna Life and Casualty Company (Aetna) appeals from the judgments of the trial court denying its application to vacate an uninsured motorist coverage compulsory arbitration award and granting Gregory Bulaong’s application to confirm the same award. See General Statutes § 38a-336. The arbitration award arose out of a claim by Bulaong for coverage for injuries he sustained while a passenger on a stolen motorcycle. Aetna claims that the trial court improperly (1) construed the phrase in the policy, “using a vehicle,” to exclude riding as a passenger, and (2) confirmed the award because to so construe that phrase contravened public policy. We agree with Aetna with respect to its first claim. With respect to its second claim, however, we conclude that this record lacks the necessary factual underpinning and, therefore, that this issue must be determined in a new arbitration proceeding. Accordingly, we reverse the judgments.

Certain facts are not in dispute. On the morning of July 4, 1979, Gregory Bulaong was injured when a motorcycle on which he was riding as a passenger was involved in an accident. Sean Birmingham, the operator of the motorcycle, admitted having stolen it. Bulaong claimed, however, that he did not know that the motorcycle had been stolen.

The Bulaongs thereafter filed a claim with Aetna under the uninsured motorist coverage portion of their family’s personal automobile policy, and sought to stack coverage under two other policies they maintained with Aetna. Aetna denied coverage under exclusion A.4 of the uninsured motorists coverage part of the policy for “[ujsing a vehicle without a reasonable belief that the person is entitled to do so.” Aetna maintained that as a passenger Bulaong was using the stolen motorcycle without a reasonable belief that he was entitled to do so, within the meaning of the exclusion.

The Bulaongs demanded arbitration under the policy, and on January 23, 1989, a hearing was held before three arbitrators. Only Bulaong and Birmingham testified, and at the conclusion of the hearing the parties agreed to brief three issues. On April 17, 1989, the arbitrators wrote to the parties requesting additional briefs on the following issue: “Is the term ‘using’ as used in this policy more or less restricting than the term ‘occupying’?”

On May 5,1989, the arbitrators rendered their decision. Two of the arbitrators found as follows: (1) the motorcycle operated by Birmingham was an uninsured motor vehicle under the terms of Aetna’s policy with the Bulaongs; (2) there were two other policies that Aetna maintained with the Bulaongs that, when stacked with the policy at issue, provided a total of $120,000 in uninsured motorist coverage to Gregory Bulaong, who was an insured because he was living at home with his parents; and (3) “[t]he claimant [Gregory Bulaong] was not ‘using’ the motorcycle operated by Sean Birmingham at said date and time -within the definition of Exclusion A4 in said policies of insurance.” The majority of the panel accordingly awarded Gregory Bulaong $120,000. The third arbitrator dissented as follows: “I hereby dissent from conclusion number 3 of this Finding and Award and would conclude, based upon the evidence offered at said hearing, that the claimant was ‘using the vehicle without a reasonable belief that he was entitled to do so’ within Exclusion A4.”

Thereafter, Aetna filed an application to vacate the award, and Bulaong filed an application to confirm the award. The trial court heard both applications together, upon submission of only the arbitrators’ decision, and the parties’ memoranda of law and arguments in support thereof.

In its memorandum of law to the trial court, Aetna argued that: (1) the arbitrators’ decision was subject to de novo review; (2) the arbitrators improperly construed the term “using” to exclude riding as a passenger; and (3) the award was against public policy because it awarded damages to one who had knowingly been engaged in illegal activity. Aetna’s argument that the award was against public policy was based on its assertion that the arbitrators had determined as a factual matter that Bulaong knew the motorcycle had been stolen and, therefore, had been using the vehicle “without a reasonable belief that [he was] entitled to do so.” The Bulaongs argued, on the contrary, that: (1) the issue of whether Gregory Bulaong was “using” the motorcycle was an issue of fact, not of law, and not subject to de novo review by the trial court; (2) the arbitrators properly found as a matter of fact that he was not using the vehicle; and (3) the award did not contravene public policy because the arbitrators did not find that he knew the vehicle had been stolen.

The trial court determined that “[t]he arbitrators’ decision has created a legal, not a factual, question.” The court reasoned that when the arbitrators ruled that Bulaong was not using the vehicle “within the definition of Exclusion A4,” they had not found that he was not on the vehicle but “only that his presence on it was not a use under the” policy. That determination, the court concluded, was a legal question subject to de novo review. Undertaking that review, the court further concluded that because the policy differentiated between “occupying” and “using,” and because of the accepted rule of construction of insurance contracts that, where there are two reasonable interpretations the court should adopt that which covers the loss, the term “using” did not include riding as a passenger. The court also rejected Aetna’s public policy argument, stating that “Aetna has failed to sustain its burden of proof.” In this connection, the court stated as follows: “There is no evidence or even argument that Bulaong ever had ‘a reasonable belief’ that either he or Birmingham had a right to use the stolen vehicle. The arbitrators by focusing on the word ‘using’ make it clear that a reasonable belief in the right to use was not found.” The court, therefore, denied Aetna’s application to vacate and granted Bulaong’s application to confirm the award. Aetna appealed from the judgment to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023.

We first consider precisely what the arbitrators and the trial court did and did not decide. Despite Aetna’s assertions to the contrary, the arbitrators did not decide the factual question of whether, when Bulaong was a passenger on the motorcycle, he was “without a reasonable belief that [he was] entitled to do so.” Although the dissenting arbitrator clearly made such a finding, there is no indication in this record that the two majority arbitrators did so. Their decision was limited to the conclusion that he was not “using” the vehicle within the meaning of the exclusion. They did not address the issue of whether he had a reasonable belief that he was entitled to do so.

Aetna argues that “[t]he trial court explicitly found that Gregory Bulaong never had a ‘reasonable belief that he was entitled to use the motorcycle on which he was riding.” We disagree. First, the trial court could not properly have made a finding of such a disputed issue on the basis of the record submitted to it, consisting only of the arbitrators’ decision, the parties’ memoranda of law, in which Bulaong repeated his contention that the arbitrators had made no such finding, and oral argument by the attorneys. Second, the trial court’s brief discussion of the issue in its memorandum of decision, while not perfectly clear, is certainly consistent, as the Bulaongs suggest, with a conclusion that the award was silent with respect to the issue of Bulaong’s reasonable belief. It was, of course, incumbent upon Aetna as the appellant to seek to have the trial court clarify any ambiguity in its decision. McLaughlin v. Bronson, 206 Conn. 267, 277-78, 537 A.2d 1004 (1988) (appellant’s responsibility to furnish adequate appellate record); see Practice Book § 4061.

Aetna also argues that the conclusion of the arbitrators that Bulaong was not using the vehicle necessarily implies that they found that he had no reasonable belief that he was entitled to do so, because without such a finding they would not have addressed the meaning of the term “using.” This argument fails because it is at least equally plausible that, because the arbitrators concluded he was not “using” the vehicle, they determined that it was not necessary to address the issue of whether he had such a reasonable belief. Indeed, the lack of any reference in their decision to whether he had such a reasonable belief makes such a reading of their decision plausible.

We are confronted, therefore, with decisions of both the arbitrators and the trial court limited to the determination that Bulaong, as a passenger on the motorcycle, was not “using” the vehicle within the meaning of the exclusion. Aetna argues, and we agree, that the determination by the arbitrators and the trial court that Bulaong was not “using” the motorcycle presents a legal issue subject to de novo review by this court.

Questions of law decided by arbitrators in compulsory arbitration proceedings pursuant to General Statutes § 38a-336 are subject to de novo review by the court. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 191, 530 A.2d 171 (1987). Interpretation of an insurance policy, like the interpretation of other written contracts, involves a determination of the intent of the parties as expressed by the language of the policy. Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 583, 573 A.2d 699 (1990). Unlike certain other contracts, however, where absent statutory warranty or definitive contract language the intent of the parties and thus the meaning of the contract is a factual question subject to limited appellate review; Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981) (purchase order); see also A. Dubreuil & Sons, Inc. v. Lisbon, 215 Conn. 604, 608-609, 577 A.2d 709 (1990) (arbitration clause); construction of a contract of insurance presents a question of law for the court which this court reviews de novo. Hammer v. Lumberman’s Mutual Casualty Co., supra; Gottesman v. Aetna Ins. Co., 177 Conn. 631, 634-37, 418 A.2d 944 (1979); see also Schultz v. Hartford Fire Ins. Co., 213 Conn. 696, 702-703, 569 A.2d 1131 (1990); Libero v. Lumbermens Mutual Casualty Co., 143 Conn. 269, 274, 121 A.2d 622 (1956); DeWitt v. John Hancock Mutual Life Ins. Co., 5 Conn. App. 590, 593-94, 501 A.2d 768 (1985). Although there may be cases where the interpretation of an insurance policy depends on factual questions; see, e.g., Libero v. Lumbermens Mutual Casualty Co., 141 Conn. 574, 108 A.2d 533 (1954); this is not such a case. Here, it was factually undisputed that Bulaong was riding as a passenger on the motorcycle, and the only question of interpretation of the policy was whether “using” was intended to include or exclude that factual scenario. That issue presents a question of law, both for the trial court reviewing de novo the arbitrators’ decision, and for this court reviewing de novo the trial court’s decision.

We turn, therefore, to the question of whether the term “using” in exclusion A.4 of the policy was intended to include riding as a passenger on the motorcycle in question. Aetna argues that the term is one of ordinary and general meaning, and that it includes being a passenger. Bulaong argues that, because the policy specifically defines “occupying” to include being a passenger, “using” within the exclusion in question must have a more narrow meaning than mere occupancy as a passenger. In effect, Bulaong argues that “use” is synonymous with “operation.” Bulaong alternatively argues that the term is at least ambiguous and therefore must be interpreted against its drafter to cover the loss. We agree with Aetna.

The ultimate question of intent in this case involves a determination of what coverage the insured expected to receive and what coverage the insurer expected to provide as disclosed by the language of the policy. Hammer v. Lumberman’s Mutual Casualty Co., supra, 583. If the words are plain and unambiguous, they must be given their ordinary and natural meaning, and we do not force, ignore or distort provisions so as to give them a different meaning from how they were evidently intended by the parties. Id. If the language is ambiguous, however, the ambiguity must be resolved against the insurer. We will not torture language to find an ambiguity that the ordinary meaning does not disclose, however, and simply because the parties contend for different meanings does not necessitate a conclusion that the language is ambiguous. Id., 584. We conclude that the term “using” in exclusion A. 4 of this policy is not ambiguous, and that given its ordinary and natural meaning it includes riding as a passenger.

The policy in question employs three terms which, depending on the context, may have overlapping meanings. Those three terms are “using” or “use,” “occupying,” and “operator.” Of the three, only “occupying” is specifically defined in the policy: “ ‘Occupying’ means in; upon; getting in, on, out or off.” (Emphasis in original.)

The terms “using” and “use” are employed throughout the policy, both in clauses defining coverage and in clauses defining exclusions from coverage. By contrast, the term “occupying” does not appear in the liability coverage part of the policy, but is employed throughout the medical payments and uninsured motorist coverage parts of the policy, and in those parts it is employed in both clauses defining coverage and in clauses defining exclusions from coverage. The term “operator” is employed primarily in disjunction with the term “owner,” and its use is limited to the uninsured motorists coverage part of the policy.

Although the meaning of policy language should ordinarily be drawn from the context in which it is used; see Rathbun v. Aetna Casualty & Surety Co., 144 Conn. 165, 168, 128 A.2d 327 (1956); we can discern no contextual pattern in the employment of these terms that sheds particular light on whether “using” was intended to have a broader or narrower scope than “occupying.” If anything, the more frequent and generalized employment of the terms “using” and “use” suggests that their meaning overlaps with and may exceed that of “occupying,” depending on the factual situations to which the terms are applied. This construction comports, moreover, with the ordinary meaning of “using” as disclosed by dictionary sources, with our precedents regarding its meaning, and with the weight of authority in other jurisdictions.

Webster’s Third New International Dictionary discloses that one of the principal meanings of the verb “to use” is “to put into action or service: have recourse to or enjoyment of: employ.” This meaning is consistent with “using” a vehicle as a passenger. Indeed, we commonly speak of “using” public transportation in precisely that sense; the same can easily be said of private transportation.

Our precedents also buttress this conclusion. We have held that “ ‘the “use” of an automobile by an individual involves its employment for some purpose or object of the user while its “operation” by him involves his direction and control of its mechanism as its driver for the purpose of propelling it as a vehicle. It is perfectly clear that an automobile is being used by an individual who is traveling in it regardless of whether it is being operated by him or by another.’ ” Freeman v. Nationwide Mutual Ins. Co., 147 Conn. 713, 716, 166 A.2d 455 (1960), quoting Maryland Casualty Co. v. Marshbank, 226 F.2d 637, 639 (3d Cir. 1955); see also Hogle v. Hogle, 167 Conn. 572, 577, 356 A.2d 172 (1975) (accident “ ‘arise[s] out of . . . use’ ” of automobile for purposes of liability coverage if it “ ‘was connected with,’ ‘had its origins in,’ ‘grew out of,’ ‘flowed from’ or ‘was incident to’ ” use of automobile).

“[T]he weight of authority from other jurisdictions supports the proposition that passengers are users of a motor vehicle.” Sears v. Grange Ins. Assn., 111 Wash. 2d 636, 639, 762 P.2d 1141 (1988); see Maryland Casualty Co. v. Marshbank, supra, 639; BASF Wyandotte Corporation v. Transport Ins. Co., 523 F. Sup. 515, 517 (E.D. Mich. 1981); Home Indemnity Co. v. Lively, 353 F. Sup. 1191, 1193 (W.D. Okla. 1972); Orrill v. Garrett, 100 Ill. App. 2d 194, 197, 240 N.E.2d 271 (1968); United States Fidelity & Guaranty Co. v. Farm Bureau Mutual Ins. Co., 2 Kan. App. 2d 580, 582, 584 P.2d 1264 (1978); Baudin v. Traders & General Ins. Co., 201 So. 2d 379, 381 (La. 1967); DeJarnette v. Federal Kemper Ins. Co., 299 Md. 708, 721-22, 475 A.2d 454 (1984); Pappas v. Central National Ins. Group, 400 Mich. 475, 481-82, 255 N.W.2d 629 (1977); National Union Fire Ins. Co. v. Bruecks, 179 Neb. 642, 648, 139 N.W.2d 821 (1966); Indemnity Ins. Co. of North America v. Metropolitan Casualty Ins. Co., 33 N.J. 507, 513-14, 166 A.2d 355 (1960); Hite v. Hartford Accident & Indemnity Co., 344 S.E.2d 173, 175 (S.C. App. 1986); State Farm Mutual Automobile Ins. Co. v. Francis, 669 S.W.2d 424, 427 (Tex. App. 1984); but see Potomac Ins. Co. v. Ohio Casualty Ins. Co., 188 F. Sup. 218, 218 (N.D. Cal. 1960); Dunlap v. Maryland Casualty Co., 242 Ark. 533, 535-37, 414 S.W.2d 397 (1967); Auto-Owners Ins. Co. v. Jones, 397 So. 2d 317, 319-20 (Fla. App. 1981). The commentators generally agree. “ ‘Use’ is to be given its ordinary meaning. It denotes the employment of the automobile for some purpose of the user.” G. Couch, Insurance (2d Ed.) § 45:321. “One may ‘use’ an automobile without personally operating it, as the term use is broader than operation.” 6C J. & J. Appleman, Insurance Law and Practice (Buckley Ed. 1979) § 4354, p. 63.

Aetna also argues that the arbitrators’ award contravened public policy because Bulaong was a passenger on a motorcycle that he knew was stolen. Thus, Aetna argues, the award contravened a purported “public policy [that] precludes the award of damages to a willing participant in an unlawful activity.” This argument is based, however, on Aetna’s assertion that the “trial court explicitly found that Gregory Bulaong never had a ‘reasonable belief’ that he was entitled to use the motorcycle on which he was riding.” That assertion founders, however, on our earlier conclusion that neither the arbitrators nor the trial court had made such a finding. Thus, that entire issue, together with any other issue that the arbitrators did not decide, remains to be decided in what will necessarily be a second arbitration proceeding.

The judgments are reversed and the case is remanded with direction to render judgments vacating the award.

In this opinion the other justices concurred.

       There were two separate trial court proceedings. Aetna sought to vacate the arbitration award, naming as defendants in its application to vacate Gregory Bulaong and his parents, Irene D. Bulaong and Rudolph G. Bulaong. Gregory Bulaong sought to confirm the award, naming Aetna as the defendant. The trial court denied Aetna’s application to vacate, and granted the application to confirm. References herein to “Bulaong” are to the injured claimant, Gregory Bulaong.

       Exclusion A.4 provided: “A. We do not provide Uninsured Motorists Coverage for bodily injury sustained by any person ... 4. Using a vehicle without a reasonable belief that the person is entitled to do so.”

       The three issues were whether: (1) the exclusion claimed by Aetna was prohibited under then General Statutes § 38-175c or the regulations thereunder; (2) Bulaong was required to establish the absence of other available insurance; and (3) the Bulaongs’ policies could be stacked.

       In the definitional section of the policy the term “occupying” was defined as follows: “ ‘Occupying’ means in; upon; getting in, on, out or off.” Exclusions A.l and 3 of the Uninsured Motorists Coverage part of the policy excluded such coverage “for bodily injury sustained by any person: 1. While occupying, or when struck by, a motor vehicle owned by you or any family member which is not insured for this coverage under this policy. This includes a trailer of any type. ... 3. While occupying your covered, auto when it is being used to carry persons or property for a fee. This exclusion does not apply to a share-the-expense car pool.” (Emphasis in original.) The term “occupying” was also used in other sections of the policy. By contrast, exclusion A.4 of the uninsured motorists coverage part of the policy, which was at issue before the arbitrators, excluded such coverage “for bodily injury sustained by any person . . . 4. Using a vehicle without a reasonable belief that the person is entitled to do so.” (Emphasis added.)

       Although Bulaong argued in the trial court that the meaning of “using” in the exclusion was a factual question, he has not specifically reasserted that argument on appeal. He confines his discussion to the argument that the trial court properly construed the term “using.”

       The principle that the intent of the parties to an insurance contract, as contrasted with certain other contracts, presents a question of law rather than fact is consistent with at least two other situations where questions of intention are regarded as questions of law. See, e.g., Connecticut National Bank & Trust Co. v. Chadwick, 217 Conn. 260, 266, 585 A.2d 1189 (1991) (intent of testator as expressed in will presents question of law for court); Kelly v. Ivler, 187 Conn. 31, 39, 450 A.2d 817 (1982) (intent of language in deed presents question of law); Expressway Associates II v. Friendly Ice Cream Corporation, 22 Conn. App. 124, 127, 576 A.2d 575, cert. granted, 216 Conn. 811, 580 A.2d 56 (1990) (intent of language in deed is question of law).

       For example, under the “Liability” coverage part of the policy, a “Covered person" is defined to include “[a]ny person using your covered auto" (emphasis in original); but there is a specific exclusion for any person “[u]sing a vehicle without a reasonable belief that the person is entitled to do so.” Similarly, under the “Medical Payments” coverage part of the policy, a covered person is defined to include certain persons while occupying “a motor vehicle designed for use mainly on public roads,” but such coverage is excluded with respect to “a vehicle when it is being used in the business or occupation of a covered person. ” (Emphasis in original.) Also, under the “Uninsured Motorists” coverage part of the policy, such coverage is limited to damages that “arise out of the ownership, maintenance or use of the uninsured motor vehicle” (emphasis in original), but such coverage is excluded with respect to a person “[u]sing a vehicle without a reasonable belief that the person is entitled to do so.”

       For example, medical payments coverage is afforded to any person “while occupying your covered auto” (emphasis in original), but such coverage is excluded with respect to persons “occupying a vehicle without a reasonable belief that the person is entitled to do so.” (Emphasis in original.) Similarly, uninsured motorists coverage is afforded to any person “occupying your covered auto, ” (emphasis in original) but it is excluded for a person “occupying your covered auto when it is being used to carry persons or property for a fee.” (Emphasis in original.)

       For example, such coverage is afforded for damages that a covered person is “entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury . . . .” (Emphasis in original.)

       As indicated earlier; see footnote 3, supra; in addition to the scope of the term “using,” the parties briefed three other issues to the arbitrators, namely, whether: (1) the exclusion on which Aetna relied is prohibited by General Statutes § 38-175c or the regulations thereunder; (2) the Bulaongs were required to establish the absence of other available insurance; and (3) the three policies could be stacked. It is clear that the arbitrators’ decision implicitly decided the latter two of these issues adversely to Aetna, and since Aetna did not raise those issues in this case it accepted those determinations. It is equally clear, however, that the arbitrators did not decide the validity of the exclusion because of their decision that the exclusion did not apply. Thus, that issue may still be raised by Bulaong.

       General Statutes § 52-418 (b) governs the circumstances under which the court, upon vacating an award pursuant to § 52-418 (a), may order a rehearing by the same arbitrators. Section 52-418 (b) provides: “If an award is vacated and the time within which the award is required to be rendered has not expired, the court or judge may direct a rehearing by the arbitrators.” (Emphasis added.) Presumably, that time has long since passed in this case. The court is confined, therefore, to vacating the award pursuant to § 52-418 (a), and the plaintiff is left with the option of initiating a second arbitration proceeding. Of course, the parties may agree, with the concurrence of the initial arbitrators, to conduct the second proceeding before the initial arbitrators.