author: Per Curiam. Berdon, J.,

text:
    CNA Insurance Company v. Frank Colman et al.
    (14366)
    Peters, C. J., Glass, Borden, Berdon and F. X. Hennessy, Js.
    Argued March 26
    decision released June 18, 1992

      Jan C. Trendowski, with whom, on the brief, was Justin J. Donnelly, Sr., for the appellant (plaintiff).

      Laurence V. Parnoff, with whom, on the brief, was Kathryn L. Braun, for the appellees (defendants).
   Per Curiam.

The central issue in this appeal is whether an employee who is injured while operating his employer’s automobile during the course of his employment is precluded by General Statutes § 31-284 (a) from collecting uninsured motorist benefits under his employer’s automobile liability insurance policy. The defendant, Frank Colman (Colman), was injured in a collision with another motor vehicle while operating his employer’s personal automobile during the course of his employment. After exhausting the third party tortfeasor’s liability coverage and receiving workers’ compensation benefits, Colman commenced a compulsory arbitration proceeding against the plaintiff, CNA Insurance Company (CNA), which insured the automobile driven by Colman, to recover uninsured motorist benefits. Although the arbitration panel ruled that Colman was entitled to such coverage, the trial court granted CNA’s motion to vacate the award. As a result of Colman’s appeal to the Appellate Court, the arbitral award was reinstated. CNA Ins. Co. v. Colman, 25 Conn. App. 651, 595 A.2d 949 (1991). We then granted CNA’s petition for certification and now reverse the judgment of the Appellate Court.

The pertinent facts are not in dispute. On July 11, 1983, Colman was involved in an automobile accident while driving his employer’s personal automobile within the scope of his employment. CNA insured the automobile, along with three others owned by Colman’s employer, under a personal automobile liability policy. Each of the four vehicles carried $40,000 in uninsured motorist coverage.

Prior to making his claim under the CNA uninsured motorist policy, Colman had exhausted the third party tortfeasor’s liability coverage of $20,000 and had received workers’ compensation benefits of $38,758.67. The central issue before the arbitration panel was “whether or not [Colman was] barred from pursuing an action for damages against [CNA] because of having been awarded Workman’s [sic] Compensation benefits from his employer.” The arbitration panel concluded that, because Colman’s action for uninsured motorist benefits was based on a “contractual concept” that existed between Colman and CNA, Colman was entitled to recover benefits despite having already received workers’ compensation benefits.

The trial court granted CNA’s application to vacate the arbitration award in reliance on Ross v. New Haven, 19 Conn. App. 169, 561 A.2d 457 (1989), which had held that § 31-284 (a) made benefits under the Workers’ Compensation Act the exclusive remedy for work related injury claims against an employer. The court further concluded that uninsured motorist benefits under CNA’s policy of insurance did not qualify as “additional benefits” under § 31-284 (a).

The Appellate Court reversed the judgment of the trial court. It concluded that § 31-284 (a) “does not bar an employee who has received workers’ compensation benefits from also obtaining uninsured or underinsured motorist benefits” from his employer’s insurer. CNA Ins. Co. v. Colman, supra, 653. Its conclusion was based in part on its reading of our decision in Wilson v. Security Ins. Co., 213 Conn. 532, 569 A.2d 40, cert. denied, 498 U.S. 814, 111 S. Ct. 52, 112 L. Ed. 2d 28 (1990), as having implicitly overruled Ross v. New Haven, supra. CNA Ins. Co. v. Colman, supra, 652.

Having been granted certification to appeal, CNA contends that § 31-284 (a): (1) bars any work related claim for uninsured motorist benefits under an insurance policy procured by the employer; and (2) bars such a claim even though the insurance at issue is an employer’s personal automobile liability insurance. We agree.

We have today concluded, in the companion case of Bouley v. Norwich, 222 Conn. 744, 610 A.2d 1245 (1992), that an employee who has received workers’ compensation benefits for injuries that occurred during the course of his employment is precluded by the clear language of § 31-284 (a) from recovering uninsured motorist benefits from his self-insured employer. We must decide in this case whether the same rule applies when the employer is not self-insured, and thus the employee’s claim is brought against a commercial insurance provider on an uninsured motorist insurance policy procured by the employer.

Colman maintains that his claim against CNA is not barred by the workers’ compensation exclusivity provision because “[ijnsurance companies, like everyone else, should be held accountable for both their acts and their contracts,” and because “[t]he benefits sought are contractual benefits from CNA, not from any ‘employer.5 ” His contention has three subparts: (1) his claim is statutory or contractual, and hence is not a personal injury claim; (2) his claim involves only the contractual liability of CNA; and (3) his claim is a special agreement that is expressly excluded from the exclusivity provision by § 31-284 (a). We find none of these arguments persuasive.

We have already determined in Bouley that, in an action against the employer, the statutory or contractual basis of uninsured motorist coverage does not exempt a claim for such benefits from the purview of the exclusivity provision of the Workers’ Compensation Act. Bouley v. Norwich, supra, 756. The characterization of the employee’s claim does not take on special significance just because the employee is pursuing an action against the employer’s insurer.

The fact that the employee’s suit is based on an uninsured motorist insurance policy issued by a commercial insurer does not warrant a departure from the exclusive remedy policy of our Workers’ Compensation Act. Colman’s employer procured and paid for the insurance policy under which Colman is seeking benefits in this case. “Under the Workers’ Compensation Act, both the employer and the employee have relinquished certain rights to obtain other advantages.” Bouley v. Norwich, supra, 752. Pursuant to this compromise, the employer is insulated from bearing any costs arising out of workplace injuries in excess of those provided by workers’ compensation. See Pokorny v. Getta’s Garage, 219 Conn. 439, 454-55, 594 A.2d 446 (1991); Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979). Claims paid by an employer’s insurer will presumably be reflected in the insurance premium that the employer must pay. It follows therefore that CNA, as the alter ego of its insured, the employer, must have the right to refuse to pay benefits to an employee injured during the course of employment above and beyond the legal liability of the employer. See Wagner v. National Indemnity Co., 492 Pa. 154, 165, 422 A.2d 1061 (1980) (exclusiveness of Workers’ Compensation Act barred employee’s claim for no-fault benefits against employer’s insurer “for an insurer provides coverage for an employer’s possible liability and has no independent basis for liability on its own part”); compare Mathis v. Interstate Freight, 408 Mich. 164, 181, 289 N.W.2d 708 (1980) (statute allowing employee’s direct cause of action against employer’s no-fault insurance carrier); see also 2A A. Larson, Workmen’s Compensation (1992) § 65.11, p. 12-1 (“Once a workmen’s compensation act has become applicable . . . it affords the exclusive remedy for the injury by the employee . . . against the employer and insurance carrier.”). Because of the central role that the exclusive remedy provision plays in our workers’ compensation law, an employee who can receive workers’ compensation benefits is therefore barred from collecting under his employer’s uninsured motorist coverage, whether that coverage is provided through self-insurance or through a commercial insurance policy.

We also reject Colman’s contention that the CNA insurance policy falls within a statutory exemption to the workers’ compensation exclusivity provision. While § 31-284 (a) provides that an employee may secure “by agreement with his employer, additional benefits from his employer” for injuries sustained during the course of employment, there is no evidence in the present case that such an agreement for additional benefits existed. The only contract in this case was between Colman’s employer and CNA. See also Bouley v. Norwich, supra, 755.

Finally, we can discern no reason to depart from our holding in Bouley on the ground that the automobile in which Colman was injured was insured pursuant to a personal automobile liability policy. While the personal nature of the coverage might be relevant to the issue of “stacking”; see Cohn v. Aetna Ins. Co., 213 Conn. 525, 529-32, 569 A.2d 541 (1990); it is not relevant to the issue of whether a claim for uninsured motorist benefits is precluded by the Workers’ Compensation Act.

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

In this opinion Peters, C. J., Glass, Borden and F.X. Hennessy, Js., concurred.

Berdon, J.,

dissenting. See my dissent in Bouley v. Norwich, 222 Conn. 744, 765-68, 610 A.2d 1245 (1992).

       General Statutes § 31-284 provides in pertinent part: “(a) An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as follows, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between employer and'employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment as aforesaid are abolished other than rights and claims given by this chapter, provided nothing herein shall prohibit any employee from securing, by agreement with his employer, additional benefits from his employer for such injury or from enforcing such agreement for additional benefits.” Although this statute was amended, effective July 1,1991, by Public Acts 1991, No. 32, §§ 7, 41, the changes are not pertinent to this appeal.

       In this opinion, the term uninsured motorist benefits encompasses underinsured motorist benefits as well.

       Frank Colman’s wife is also a defendant in this case. As used in this decision, Colman refers to the named defendant.

       We granted certification limited to the following question: “Is an employee who is injured in the course of his employment and who has received workers’ compensation benefits barred from receiving uninsured or underinsured motorist benefits from his employer pursuant to Connecticut General Statutes section 31-284 (a)?” CNA Ins. Co. v. Colman, 220 Conn. 920, 597 A.2d 341 (1991).

       Because arbitration of coverage issues was compulsory pursuant to General Statutes § 38-175c, the trial court properly subjected the arbitrator’s interpretation of the law to de novo review. Bodner v. United Services Automobile Assn., 222 Conn. 480, 610 A.2d 1212 (1992); American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 530 A.2d 171 (1987).


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Barbara Durniak, Administratrix (Estate of Michael Durniak), et al. v. August Winter and Sons, Inc.
    (14526)
    Peters, C. J., Callahan, Glass, Covello and Borden, Js.
    Argued June 3
    decision released July 14, 1992

      April Haskell, with whom was Joanne T. Belisle, for the appellant (intervening plaintiff).

      Michael A. Fitzhugh, with whom were Lori Watson and, on the brief, R. Paul Roecker, for the appellee (defendant).
   Peters, C. J.

Our statutes permit an injured employee to pursue a personal injury action against a third party tortfeasor, even though the employee’s exclusive remedy against his employer is the recovery of workers’ compensation benefits. General Statutes §§ 31-284 (a) and 31-293 (a). The issue in this case is whether the third party tortfeasor may raise the negligence of the employer as a special defense when the employer has intervened in the personal injury action as party plaintiff in order to secure the employer’s statutory right to reimbursement of workers’ compensation benefits.

The plaintiff, Barbara Durniak, individually and as administratrix of the estate of Michael Durniak, brought this action in the United States District Court to recover for negligence and for breach of contract because of fatal injuries suffered by her decedent on a construction site allegedly under the control of the defendant, August Winter and Sons, Inc. The decedent’s employer, C.R. Meyer and Sons Company (employer), then filed a complaint, as intervening plaintiff, for reimbursement of workers’ compensation benefits in accordance with § 31-293 (a). Thereafter, the defendant amended its answer to add a third special defense alleging that the decedent’s injuries had resulted from the negligence of the intervening plaintiff. The District Court referred to the magistrate a motion by the intervening plaintiff to strike the third special defense. The magistrate recommended that the motion be granted but suggested that the District Court consider requesting certification of the interpretation of § 31-293 (a) to this court pursuant to General Statutes § 51-199a and Practice Book § 4168. We granted the District Court’s request for certification, and we answer the certified question, “No.”

The record certified by the District Court provides the following factual information. The plaintiff’s decedent, a carpenter employed by the intervening plaintiff, suffered fatal injuries when he fell through a hole in the floor of a construction site. The plaintiff’s complaint alleges that the decedent’s injury and death were attributable to the negligence of the defendant in its conduct at the construction site and to the defendant’s failure to maintain proper barricades or guardrails in accordance with contract specifications. The defendant’s third special defense alleges that whatever injuries the plaintiff’s decedent might have suffered resulted from the negligence of the employer.

In his ruling on the employer’s motion to strike, the magistrate noted that the text of § 31-293 neither precludes nor authorizes the special defense raised by the defendant. He concluded, however, that particular weight should be given to the absence of statutory authorization for the defense. Because workers’ compensation is governed by an “explicit legislative scheme,” he held that one would reasonably expect to find some express evidence of legislative intent if the statutory claim for reimbursement provided in § 31-293 (a) were to be open to the “fault-based contest” proposed by the defendant. He therefore ruled that, absent a certification of the question to this court, the motion to strike should be granted. The District Court then initiated the certification process that led to the present proceedings.

Our analysis of the competing rights of a defendant and an intervening employer is guided by four overlapping principles that inform the rights established by § 31-293 (a). First, the statute protects an injured employee by allowing the employee to sue a third party tortfeasor in a private cause of action for damages, such as pain and suffering, that are uncompensated by a workers’ compensation award. Skitromo v. Meriden Yellow Cab Co., 204 Conn. 485, 488, 528 A.2d 826 (1987). Second, the statute protects an employer by allowing the employer to obtain reimbursement for workers’ compensation benefits from a third party tortfeasor, either by becoming an intervening plaintiff in the employee’s cause of action or by bringing a separate action derivative of the employee’s cause of action. Id. Third, the employer’s statutory right to subrogation of the proceeds of the employee’s claim against the tortfeasor implements the public policy of preventing double recovery by an injured employee. Enquist v. General Datacom, 218 Conn. 19, 26, 587 A.2d 1029 (1991). Fourth, the employer’s statutory right to reimbursement reenforces the public policy that, between the employer and the employee, workers’ compensation provides the exclusive remedy for personal injury to the employee. Bouley v. Norwich, 222 Conn. 744, 755-56, 610 A.2d 1245 (1992); Sgueglia v. Milne Construction Co., 212 Conn. 427, 433, 562 A.2d 505 (1989).

Bearing these principles in mind, we turn to the language of § 31-293 (a) to see whether it authorizes the special defense against the employer that the defendant seeks to assert in this case. The language is illuminating both for what it says and for what it does not say. The statute unconditionally authorizes reimbursement to the employer “[i]f such employer and employee join as parties plaintiff in such action and any damages are recovered.” It provides for the apportionment of any damages award so 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.” Although the statute thus recognizes the propriety of some deductions as offsets to the employer’s statutory subrogation claim, the statute does not make the employer’s negligence a ground for limiting the employer’s recovery.

The defendant maintains, however, that we should attach significance to the absence of language in § 31-293 (a) abolishing the common law rights of third party tortfeasors. He asks us to infer, from this absence, a legislative intent to treat the relationship between the tortfeasor and the employer as incorporating common law precepts of contributory or comparative negligence. Such an inference is unwarranted.

We have repeatedly observed that our act represents a complex and comprehensive statutory scheme balancing the rights and claims of the employer and the employee arising out of work-related personal injuries. Because of the comprehensive nature of the act, the responsibility for carving out exceptions from any one of its provisions belongs to the legislature and not to the courts. Bouley v. Norwich, supra, 760-61; Panaro v. Electrolux Corporation, 208 Conn. 589, 605, 545 A.2d 1086 (1988); Mingachos v. CBS, Inc., 196 Conn. 91, 106, 491 A.2d 368 (1985). The legislature manifestly has the competence to enact statutes relating workers’ compensation to tort reform. See, e.g., General Statutes § 52-572r (c). Absent such express legislative intervention, we have held that we should not assume that the legislature intended to create an exception for aggravated torts; Mingachos v. CBS, Inc., supra; or for uninsured motorist benefits. Bouley v. Norwich, supra, 761. It is similarly inappropriate, in this case, for us to undermine the tradeoffs that underlie workers’ compensation by importing contributory or comparative negligence into the no-fault workers’ compensation reimbursement program. See J. King, “The Exclusiveness of an Employee’s Workers’ Compensation Remedy Against His Employer,” 55 Tenn. L. Rev. 405, 411 (1988).

This conclusion does not create an irreconcilable conflict between the workers’ compensation statute and General Statutes § 52-572h, the comparative negligence statute. By its own terms, the comparative negligence statute applies only to “causes of action based on negligence.” General Statutes § 52-572h (b). Accordingly, its terms do not govern statutory causes of action that have no common law counterpart. Lukas v. New Haven, 184 Conn. 205, 212, 439 A.2d 949 (1981); Belanger v. Village Pub I, Inc., 26 Conn. App. 509, 512-14, 603 A.2d 1173 (1992). Because an employer’s right to obtain reimbursement from a third party tortfeasor is a statutory claim that is derived in its entirety from § 31-293 (a); Skitromo v. Meriden Yellow Cab Co., supra, 489; Robinson v. Faulkner, 163 Conn. 365, 377-78, 306 A.2d 857 (1972); the employer’s claim does not fall within the compass of § 52-572h.

Our conclusion comports with the result reached in a number of Superior Court decisions in this state and in the majority of cases decided in other jurisdictions. “[I]t is generally held that the employee cannot be met with a defense that his own employer’s negligence contributed to the injury.” 2B A. Larson, Workmen’s Compensation Law (1989) § 75.22, p. 14-578; Stroud v. Dorr-Oliver, Inc. 112 Ariz. 403, 409, 542 P.2d 1102 (1975) ; Pyles v. Bridges, 283 So. 2d 394, 396 (Fla. App. 1973); American Ins. Co. v. Duo Fast Dixie, Inc., 367 So. 2d 415, 416-17 (La. App. 1979); C & K Lord, Inc. v. Carter, 74 Md. App. 68, 75, 536 A.2d 699 (1988); Van Hook v. Harris Corporation, 136 Mich. App. 310, 312-13, 356 N.W.2d 18 (1984); Nyquist v. Batcher, 235 Minn. 491, 498, 51 N.W.2d 566 (1952); Bilodeau v. Oliver Stores, Inc., 116 N.H. 83, 88, 352 A.2d 741 (1976) ; Taylor v. Delgarno Transportation, Inc., 100 N.M. 138, 141, 667 P.2d 445 (1983); Pellone v. Stratford Tower, Inc., 56 App. Div. 2d 647, 648, 391 N.Y.S.2d 896 (1977); Layman v. Braunschweigische Maschinenbauanstalt, Inc., 343 N.W.2d 334, 350 (N.D. 1983); Boldman v. Mt. Hood Chemical Corporation, 288 Or. 121, 139, 602 P.2d 1072 (1979); Bristol Telephone Co. v. Weaver, 146 Tenn. 511, 522, 243 S.W. 299 (1921); Varela v. American Petrofina Co., 658 S.W.2d 561, 562 (Tex. 1983); Clark v. Chicago, M., St. P. & P. R. Co., 214 Wis. 295, 304-305, 252 N.W. 685 (1934). Although we recognize that some state courts have reached a different result, some of these cases turn, at least in part, on statutory configurations that differ from those that prevail in this state. See, e.g., Witt v. Jackson, 57 Cal. 2d 57, 72, 366 P.2d 641, 17 Cal. Rptr. 369 (1961); Runcorn v. Shearer Lumber Products, Inc., 107 Idaho 389, 395-96, 690 P.2d 324 (1984); Brown v. Keill, 224 Kan. 195, 206, 580 P.2d 867 (1978); Leonard v. Johns-Manville Sales Corporation, 309 N.C. 91, 97, 305 S.E.2d 528 (1983). We therefore agree with the interpretation of Connecticut law reflected in Cyr v. F. S. Payne Co., 112 F. Sup. 526 (D. Conn.), aff'd, 208 F.2d 356 (2d Cir. 1953), and disagree with Cirrito v. Continental Can Co., 519 F. Sup. 638 (D. Conn. 1981).

The certified question is answered: uNo.”

No costs shall be taxed to either party.

In this opinion the other justices concurred.

       General Statutes $ 31-284 provides in relevant part: “(a) An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as follows, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between employer and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment as aforesaid are abolished other than rights and claims given by this chapter, provided nothing herein shall prohibit any employee from securing, by agreement with his employer, additional benefits from his employer for such injury or from enforcing such agreement for additional benefits.”

       General Statutes § 31-293 provides in relevant part: “liability of third persons to employer and employee. . . . (a) When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in 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 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.”

       The certified question is: “Is it proper for a defendant to raise the negligence of the plaintiffs employer as a special defense in answer to the intervening complaint of the plaintiffs employer in a case where the intervening complaint is based solely upon the statutory rights accorded the plaintiffs employer under Connecticut General Statute[s] § 31-293?”

       General Statutes § 52-5'72h provides in relevant part: “(b) In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person or Ms legal representative to recover damages resulting from personal injury, wrongful death or damage to property if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought including settled or released persons under subsection (n) of this section. The economic or noneconomic damages allowed shall be diminished in the proportion of the percentage of negligence attributable to the person recovering which percentage shall be determined pursuant to subsection (f) of this section.

        “(c) In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for his proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section.”

       A different result might follow if the special defense alleged not merely the negligence of the employer but included some other basis for liability such as the existence of an independent relationship between the defendant and the employer. See Ferryman v. Groton, 212 Conn. 138, 143-45, 561 A.2d 432 (1989); 2B A. Larson, Workmen’s Compensation Law (1989) § 76.00, p. 14-644.
      A different result might also follow if, instead of relying on a special defense alleging the intervening employer’s negligence, the defendant, having filed a general denial, sought to make an evidentiary showing that it was the employer’s conduct rather than the defendant’s conduct that had proximately caused the employee’s injuries. See Williams v. Union Carbide Corporation, 734 S.W.2d 699, 703 (Tex. Ct. App. 1987).


text:
    BayBank Connecticut, N.A. v. H. Donald Thumlert et al.
    (14392)
    Peters, C. J., Callahan, Glass, Borden and Berdon, Js.
    Argued April 29
    decision released July 14, 1992

      Richard M. Leibert, for the appellant (plaintiff).

      I). Jefferson Blackwell, Jr., for the appellees (named defendant et al.).
   Peters, C. J.

The principal issue in this appeal is whether the thirty day time limit specified in General Statutes § 49-14 (a) for filing a motion for a deficiency judgment in a mortgage foreclosure action is applicable to a judgment of foreclosure by sale. Concluding that the time limitation contained in § 49-14 (a) governs a motion for a deficiency judgment following a foreclosure by sale, the trial court, Goldberg, J., denied as untimely the motion for a deficiency judgment filed by the plaintiff, BayBank Connecticut, N.A., against the named defendant, H. Donald Thumlert (defendant). The plaintiff appealed the denial of its motion to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We reverse.

On March 14, 1989, the defendant granted a mortgage to the plaintiff on a parcel of land in Glastonbury to secure a promissory note in the amount of $500,000. The defendant defaulted on the payment of the note and on August 1,1990, the plaintiff commenced a foreclosure action against the defendant in Superior Court. The trial court, Allen, J., granted the plaintiff’s motion for judgment of strict foreclosure on December 31, 1990. Thereafter, on January 22,1991, the trial court opened its judgment of strict foreclosure and, on March 4, 1991, granted the motion for judgment of foreclosure by sale filed by the United Bank and Trust Company, a subsequent lienholder. On April 13,1991, a committee appointed by the trial court sold the property to the plaintiff, the only bidder, for the sum of $500,000. The trial court ratified the sale on April 29, 1991, and rendered a supplemental judgment confirming the sale on June 24, 1991.

Alleging a deficiency of $72,390.88, representing the difference between the approved sale price and the debt plus expenses, the plaintiff filed a motion for a deficiency judgment with the trial court on June 10,1991. The defendant objected to the motion on the ground that it had been filed more than thirty days after the court had approved the sale and thus was untimely under § 49-14 (a). The plaintiff countered that the time limit of § 49-14 (a) applies solely to a motion for a deficiency judgment following a judgment of strict foreclosure.

Relying upon the Appellate Court’s decision in Central Bank for Savings v. Heggelund, 23 Conn. App. 266, 268 n.1, 579 A.2d 598 (1990), the trial court, Goldberg, J., applied the thirty day time limit of § 49-14 (a) to the plaintiff’s motion for a deficiency judgment and concluded that it had been untimely filed. In Heggelund, the Appellate Court, in a footnote, addressing an alternate ground raised by the defendant for affirming the trial court’s judgment, stated that the plaintiffs motion for a deficiency judgment following a judgment of foreclosure by sale had been timely. The Appellate Court stated that “[t]he thirty day time limit for moving for a deficiency judgment pursuant to General Statutes § 49-14 begins to run from the day the title transfer becomes absolute, which . . . was . . . the day the court approved the sale of the property to the mortgagee.” Id. On the basis of the Appellate Court’s “unequivocal expression” in Heggelund that the thirty day time limit of § 49-14 (a) applies to a motion for a deficiency judgment following a judgment of foreclosure by sale, the trial court in the present case denied the plaintiff’s motion.

The plaintiff raises three issues on appeal to this court. First, relying upon the plain language of § 49-14 (a), it reasserts its claim that the thirty day time limit does not apply to a motion for a deficiency judgment following a judgment of foreclosure by sale. Second, the plaintiff claims that, if we should conclude that the thirty day time limit of § 49-14 (a) applies to a motion for a deficiency judgment following a judgment of foreclosure by sale, the statute is unconstitutionally vague. Third, the plaintiff claims that, if § 49-14 (a) applies and is constitutional, its thirty day time period begins to run from the date the supplemental judgment is approved, or from the date of the conveyance of title, and not, as the trial court concluded, from the date the court approved the sale of the property. We agree with the plaintiff that the thirty day time limitation of § 49-14 (a) is inapplicable to a motion for a deficiency judgment following a judgment of foreclosure by sale and, accordingly, do not address the plaintiff’s remaining two claims.

Section 49-14 (a) provides in part: “At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment.” The defendant emphasizes that the statute does not distinguish between a strict foreclosure and a foreclosure by sale. He maintains that, if the legislature had intended the time limitation of § 49-14 (a) to apply solely to strict foreclosure actions, it would have so indicated expressly.

We do not, however, view this sentence in isolation from the remainder of the statute. “The process by which legislation becomes binding law is not a piecemeal one; statutes are not passed sentence by sentence, or clause by clause. It follows that a court’s interpretation of a single provision necessitates consideration of the statute in its entirety, deriving the meaning of a part from the whole of the words and phrases that the legislature declared to be the law.” (Internal quotation marks omitted.) Vernon Village, Inc. v. Carothers, 217 Conn. 130, 137, 585 A.2d 76 (1991). “[T]he statute must be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation.” American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987); Orticelli v. Powers, 197 Conn. 9, 14, 495 A.2d 1023 (1985).

Applying these basic mandates of statutory construction, we are persuaded that the legislature intended the time limitation of § 49-14 (a) to apply only to a motion for a deficiency judgment filed after a strict foreclosure proceeding. The remaining sentences of § 49-14 (a) are as follows: “Such motion shall be placed on the short calendar for an evidentiary hearing. Such hearing shall be held not less than fifteen days following the filing of the motion .... At such hearing the court shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiff’s claim. . . .” (Emphasis added.) Each sentence depends for its meaning upon the sentence that immediately precedes it. “Such motion,” the filing of which results in an evidentiary hearing to establish a valuation for the property, therefore refers to the motion for a deficiency judgment mentioned in the first sentence of the statute. While an evidentiary hearing is required to determine the value of the mortgaged property and thus the amount of any deficiency following a strict foreclosure, such a valuation would be superfluous following a foreclosure by sale. In the latter action “the price realized upon the sale of the property fixes the amount for which a deficiency may be entered pursuant to General Statutes § 49-28.” Fairfield Plumbing & Heating Supply Corporation v. Kosa, 220 Conn. 643, 646 n.8, 600 A.2d 1 (1991); see also Cronin v. Gager-Crawford Co., 128 Conn. 688, 692-93, 25 A.2d 652 (1942); D. Caron, Connecticut Foreclosures (2d Ed. 1989) § 9.05B, p. 161. Because the valuation procedure of § 49-14 (a) has no applicability to a deficiency judgment following a judgment of foreclosure by sale; see Fairfield Plumbing & Heating Supply Corporation v. Kosa, supra; the first sentence of the subsection, including the thirty day time limit, must be construed to apply solely to a strict foreclosure action. Accord D. Caron, “Recent Decisions Refine Foreclosure Deficiency Proceedings,” Connecticut Lawyer (Feb. 1991) pp. 3, 9.

Our conclusion is further bolstered by the legislature’s enactment of statutory guidelines that expressly regulate the procedure for rendering a deficiency judgment following a foreclosure by sale. General Statutes § 49-28 provides in relevant part that “[i]f the proceeds of the sale are not sufficient to pay in full the amount secured by any mortgage or lien thereby foreclosed, the deficiency shall be determined, and thereupon judgment may be rendered in the cause for the deficiency against any party liable to pay . . . .”

“[Statutes are to be interpreted with regard to other relevant statutes because the legislature is presumed to have created a consistent body of law.” Heffernan v. Slapin, 182 Conn. 40, 46, 438 A.2d 1 (1980). The predecessor to § 49-14 was enacted as chapter 129 of the Public Acts of 1878, while the predecessor to § 49-28 was enacted nine years later as § 6 of chapter 109 of the Public Acts of 1887. See Cronin v. GagerCrawford Co., supra, 694. In enacting the latter statute specifically governing deficiency judgments following a judgment of foreclosure by sale, the legislature is presumed to have established a statutory procedure that, rather than duplicating existing requirements, established new ones where none had previously existed. Indeed, we recognized in Cronin v. GagerCrawford Co., supra, 694-95, that the predecessor to § 49-14 contemplated a deficiency judgment following a strict foreclosure, while the predecessor to § 49-28 related to a deficiency judgment following foreclosure by sale. See also D. Caron, Connecticut Foreclosures (2d Ed. 1989) §§ 9.05A and 9.05B.

We are further unpersuaded by the defendant’s assertion that the lack of a time limit for filing a motion for a deficiency judgment in § 49-28 requires us to construe the thirty day time limit of § 49-14 (a) to apply to a foreclosure by sale. A time limitation is essential in a strict foreclosure situation because determining the value of the property at the time of foreclosure “becomes increasingly difficult as time passes.” Fairfield Plumbing & Heating Supply Corporation v. Kosa, supra, 649. Consequently, a virtually contemporaneous motion for deficiency judgment is warranted. When foreclosure is by sale, in contrast, the sale price automatically determines the value of the property for purposes of establishing the amount of any deficiency. The timing of a motion for a deficiency judgment following a foreclosure by sale is therefore not crucial.

Our conclusion does not leave a debtor remediless in the event of an egregious delay in the filing of a motion for a deficiency judgment. Because a mortgage foreclosure is an equitable proceeding; Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 354, 579 A.2d 1054 (1990); a defendant who is demonstrably prejudiced by a plaintiffs delay in filing a motion for a deficiency judgment may invoke the equitable defense of laches. See, e.g., id., 350-51; Danaher v. C.N. Flagg & Co., 181 Conn. 101, 107, 434 A.2d 944 (1980). No such defense was, however, raised by the defendant in this case, either in the trial court or on appeal.

We are also not persuaded by the defendant’s contention that interpreting § 49-14 (a) to apply solely to deficiency judgments following strict foreclosure actions “would leave deficiencies in foreclosures by sale without the due process protections that were created when Connecticut General Statutes § 49-14 was revised after being found unconstitutional in Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563 [409 A.2d 1020] (1979).” “In 1979, the legislature amended the procedure for calculating a deficiency in a strict foreclosure action in response to [this court’s decision in Society for Savings v. Chestnut Estates, Inc., supra,] holding the existing procedure unconstitutional.” (Emphasis added.) Fairfield Plumbing & Heating Supply Corporation v. Kosa, supra, 648. We stated in Society for Savings v. Chestnut Estates, Inc., supra, 574, that “[t]he gravamen ... of the due process attack on § 49-14 is the fact that a debtor is not provided a meaningful opportunity to challenge the determination of value upon which the deficiency judgment against him is predicated.” The procedural safeguards added to § 49-14 following our decision in Society for Savings are not relevant, however, to a deficiency judgment following a foreclosure by sale because the value of the property for purposes of establishing the amount of any such deficiency is conclusively fixed upon the sale, in which the defendant may participate.

The judgment is reversed and the case is remanded with instructions to rule upon the plaintiffs motion for a deficiency judgment.

In this opinion the other justices concurred.

       General Statutes § 49-14 provides in relevant part: “(a) At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. Such motion shall be placed on the short calendar for an evidentiary hearing. Such hearing shall be held not less than fifteen days following the filing of the motion, except as the court may otherwise order. At such hearing the court shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiffs claim. The plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment.”

       Also named as defendants in the plaintiffs action were Gloria A. Thumlert, United Bank and Trust Company, Landmark Bank, Community National Bank, Thompson Landscape Improvement, Inc., and Becker Sheet Metal Company.

       General Statutes § 49-25 does provide that “[w]hen the court in any such proceeding is of the opinion that a foreclosure by sale should be decreed, it shall . . . appoint three disinterested persons who shall, under oath, appraise the property to be sold and make return of their appraisal to the clerk of the court.” “[A]n appraisal under the statute is not conclusive upon a plaintiff ... as to the value of the property in fixing the amount of the deficiency.” Cronin v. Gager-Crawford Co., 128 Conn. 688, 692, 25 A.2d 652 (1942). In Cronin, we explained that the purpose of this appraisal provision is twofold. First, we reviewed the predecessor to General Statutes § 49-28, General Statutes (1930 Rev.) § 5116, which provides in part that “[i]f the property shall have sold for less than the appraisal provided for in section 5113 [now § 49-25] . . . one-half of the difference between such appraised value and such selling price shall have been credited upon such debt or debts as of the date of sale . . . .” We stated that this provision ensures that “the party who asks [for] and obtains an order of sale in place of a decree of strict foreclosure” bears the loss of value that is likely in a forced sale situation. Cronin v. Gager-Crawford Co., supra. Second, we stated that the appraisal “might also serve to assist the court in determining whether or not to approve the sale as one which fairly realized the value of the property.” Id.

       “[General Statutes] Sec. 49-28. when proceeds of sale will not pay in full. If the proceeds of the sale are not sufficient to pay in full the amount secured by any mortgage or lien thereby foreclosed, the deficiency shall be determined, and thereupon judgment may be rendered in the cause for the deficiency against any party liable to pay the same who is a party to the cause and has been served with process or has appeared therein, and all persons liable to pay the debt secured by the mortgage or lien may be made parties; but all other proceedings for the collection of the debt shall be stayed during the pendency of the foreclosure suit, and, if a deficiency judgment is finally rendered therein, the other proceedings shall forthwith abate. If the property has sold for less than the appraisal provided for in section 49-25, no judgment shall be rendered in the suit or in any other for the unpaid portion of the debt or debts of the party or parties upon whose motion the sale was ordered, nor shall the same be collected by any other means than from the proceeds of the sale until one-half of the difference between the appraised value and the selling price has been credited upon the debt or debts as of the date of sale; and, when there are two or more debts to which it is to be applied, it shall be apportioned between them.”

       The defendant’s contention that the time limitation of General Statutes § 49-14 (a) should be interpreted to apply to a motion for a deficiency judgment following a foreclosure by sale is further undermined by the fact that in 1878, when the predecessor to § 49-14 was enacted, there was not yet a statutory right to a foreclosure by sale. See Public Acts 1887, No. 109, § 1.


author: Santaniello, J.

text:
    Alex Simko, Sr., et al. v. Nicholas D. LaMorte, Trustee
    (14472)
    Peters, C. J., Glass, Borden, Berdon and Santaniello, Js.
    Argued May 6
    decision released July 14, 1992

      Charles S. Harris, with whom was Arthur B. Harris, for the appellant (defendant).

      Howard B. Naylor, for the appellees (plaintiffs).
   Santaniello, J.

This is an appeal by the defendant, Nicholas D. LaMorte, trustee, from a decision of the trial court denying his motion to vacate an execution that had been levied upon his trustee account.

The relevant facts are not in dispute. The defendant represented the plaintiffs in a real estate closing. The closing generated proceeds in the amount of $35,000, which were entrusted to the defendant, who placed them in his trustee account. On June 5, 1983, the defendant signed a promissory note, as trustee, under which he was to pay the plaintiffs $35,000 with interest over a five year period. The defendant defaulted on the note, and on June 16, 1989, the plaintiffs commenced this action against the defendant in his capacity as trustee to collect the amount due under the note, plus attorney’s fees and costs. On November 16,1989, the trial court granted the plaintiffs’ motion for default for failure to appear, and on September 20,1990, the trial court rendered judgment against Nicholas D. LaMorte, trustee. Thereafter, the plaintiffs obtained a bank execution against the trustee account of the named judgment debtor, Nicholas LaMorte, trustee. This execution was served on Norwalk Savings Society where the defendant had his trustee account. The bank froze the trustee account and notified the defendant.

The defendant filed a motion to vacate the execution, claiming that the moneys on deposit in the trustee account did not belong to the plaintiffs, but rather were due and payable solely to third parties. After having considered memoranda of law prepared by the parties, the trial court denied the motion to vacate execution.

The defendant appealed to the Appellate Court from the trial court’s judgment, claiming that the trial court incorrectly: (1) failed to order a hearing in accordance with General Statutes § 52-356C, and (2) denied his motion to vacate execution on the ground that the deposits in the account belonged exclusively to third parties, and not to the plaintiffs. We transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c), and we now reverse.

We first consider whether the trial court should have held a hearing, pursuant to § 52-356e, to determine the respective interests of the plaintiffs and any third parties with deposits in the defendant’s trustee account. Section 52-356c provides in pertinent part: “(a) Where a dispute exists between the judgment debtor or judgment creditor and a third person concerning an interest in personal property sought to be levied on, or where a third person claims that the execution will prejudice his superior interest therein, the judgment creditor or third person may, within twenty days of service of the execution . . . make a claim for determination of interests pursuant to this section.” Section 52-356c (b) provides that this claim “shall be filed . . . on a prescribed form as a supplemental proceeding to the original action.” Section 52-356c (c) provides that “[o]n filing of the claim, the clerk of the court shall assign the matter for hearing . . . and order that notice of the hearing be served by the claimant on all persons known to claim an interest in the disputed property.” Thus, under the statute, “disputes about the validity of a garnishment may be adjudicated in a hearing in supplemental proceedings that are ancillary to the underlying action.” Hospital of St. Raphael v. New Haven Savings Bank, 205 Conn. 604, 607 n.3, 534 A.2d 1189 (1987).

According to the defendant, the trial court should have ordered a hearing pursuant to this statute to determine the respective interests of the third parties and the plaintiffs in the defendant’s trustee account. The plaintiffs argue that no such hearing was required because the defendant had not complied with the twenty day requirement of § 52-356c (a), and had not made application on the prescribed form as required by subsection (b). The plaintiffs further argue that this statute has no application to the present case because, under the statute, only judgment creditors like the plaintiffs or third person claimants may request a hearing.

The court file reveals the following. The defendant attached an affidavit to his motion to vacate execution, which indicated that the money in his trustee account belonged exclusively to third parties and not to the plaintiffs. At oral argument on the motion to vacate, the defendant presented a second affidavit that included the names and addresses of the third parties with deposits in the trustee account. The defendant argued before this court that the reason the second affidavit was filed was to alert the trial court to § 52-356c, because, at that time, the prescribed forms were unavailable at the clerk’s office. This contention was emphasized in the defendant’s memorandum in support of his motion to vacate, which was prepared at the court’s request. This memorandum specifically requested the court to hold a hearing pursuant to General Statutes § 52-356c.

It is clear, therefore, that the statute was brought to the attention of the trial court prior to its ruling denying the motion to vacate. It is equally clear, however, that the request for a hearing was not presented on the prescribed form in a timely manner. On May 23, 1991, the bank execution was signed by an assistant clerk of the Superior Court. According to the plaintiffs, the bank execution papers were served on Norwalk Savings Society on May 29, 1991. The defendant was notified of the execution by letter dated May 30,1991. The defendant took no action until he filed his motion to vacate execution on June 14, 1991. Although this motion was filed within twenty days of service of the execution, we note that the motion itself does not refer to the § 52-356c hearing. We again note, however, that the request for a hearing was made in the defendant’s memorandum in support of his motion, which was filed at the request of the trial court.

Under these circumstances, we hold that the trial court should have held a hearing, pursuant to § 52-356c, to determine the respective interests of the plaintiffs and the third parties with deposits in the defendant’s trustee account. Our holding is consistent with the equitable nature of the statutory hearing. See 30 Am. Jur. 2d, Executions § 109. We further hold that, although generally the judgment debtor is not a party to the hearing; see 30 Am. Jur. 2d, Executions § 112; in the present case, the defendant, as trustee for third panties with deposits in the account, may request a hearing pursuant to § 52-356c, on behalf of those third parties. In view of this holding, it is unnecessary to consider the defendant’s second argument.

The judgment is reversed and the case is remanded with direction to hold the hearing required pursuant to General Statutes § 52-356c.

In this opinion the other justices concurred.

       General Statutes § 52-356c provides: “determination of interests in disputed property, (a) Where a dispute exists between the judgment debtor or judgment creditor and a third person concerning an interest in personal property sought to be levied on, or where a third person claims that the execution will prejudice his superior interest therein, the judgment creditor or third person may, within twenty days of service of the execution or upon application by the judgment creditor for a turnover order, make a claim for determination of interests pursuant to this section.
      “(b) The claim, which shall constitute the appearance of any third-person claimant, shall be filed with the superior court, on a prescribed form as a supplemental proceeding to the original action. The claim shall contain a description of the property in which an interest is claimed and a statement of the basis for the claim or the nature of the dispute.
      “(c) On filing of the claim, the clerk of the court shall assign the matter for hearing on a date certain and order that notice of the hearing be served by the claimant on all persons known to claim an interest in the disputed property.
      “(d) Pending the hearing on the claim and subject to further order of the court, any property in dispute shall continue to be held by the person then in possession and shall not be transferred to any person who is not a party to the supplemental proceeding. If previously seized by or delivered to a levying officer, the property shall remain in the custody of the levying officer.
      “(e) Unless the judgment creditor waives such rights as he may have to execute against the contested property, the claim shall be deemed controverted and the issues shall be joined without further pleading by any party. The court may permit or require such further pleadings, amendments and notices and may make such further orders as justice or orderly administration requires. Prior to hearing the claim, the court may in its discretion: (1) Require the judgment creditor to post a bond in favor of a third person claimant for any damages which may accrue as a result of the outstanding execution and any subsequent proceedings, (2) on substitution by the third person of a bond as security for the property, allow the third person to obtain release of the property pending determination of the claim, or (3) direct that other known nonexempt property of the judgment debtor first be executed against.
      “(f) After hearing, the court shall render judgment determining the respective interests of the parties and may order the disposition of the property or its proceeds in accordance therewith.
      “(g) This section does not affect any interest in property of any person who is not a party to a determination pursuant to the provisions of this section.”

       This memorandum states: “[General Statutes § 52-356e] provides . . . for an application to be filed on behalf of third parties claiming an interest in disputed property on a prescribed form. Inquiry at the Clerk’s office of the Superior Court in Stamford established that forms were not available. The statute further provides that the court shall assign the matter for hearing, that notice be given to all persons known to claim an interest in the disputed property and that, after hearing, the Court shall render judgment determining the respective interests of the parties ....
      “[The court] is bound by [§ 52-356c] and should set the matter for hearing on a date certain, notify all interested parties, including those named in the defendant’s affidavits . . . and after hearing, determine their respective interests in said accounts.”