author: Callahan, J.

text:
    James D. Greene et al. v. J. William Burns, Commissioner of Transportation
    (14243)
    Shea, Callahan, Glass, Borden and Berdon, Js.

      Argued February 14
    decision released April 28, 1992

      Arnold Sbarge, with whom, on the brief, was Craig S. Taschner, for the appellants (plaintiffs).

      Michael J. Lombardo, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Callahan, J.

The dispositive issue in this appeal from the judgment rendered in a condemnation action is whether the trial court properly valued real property of the plaintiffs that the state had taken by eminent domain. The defendant, the commissioner of transportation, condemned land belonging to the plaintiffs, James D. Greene, Patrick J. Crehan, Richard J. Fricke and James A. Canevari, and determined its value for purposes of condemnation. The plaintiffs appealed to the Superior Court, claiming that the defendant had undervalued their property. The Superior Court disagreed with the plaintiffs, however, and concluded that the defendant had actually overvalued the plaintiffs’ property. Thereafter, the plaintiffs appealed to the Appellate Court, and we transferred the case to this court pursuant to Practice Book § 4023. We affirm the judgment of the trial court.

The plaintiffs were the owners of undeveloped land located in Danbury and Ridgefield. The plaintiffs’ land consisted of approximately twenty-four acres located in Danbury, which was zoned light industrial, and approximately twenty-nine acres located in Danbury and Ridgefield, which was zoned residential. On November 18, 1988, pursuant to General Statutes § 13-73 et seq., the defendant condemned the entire property for use in constructing a state highway, and estimated damages to the plaintiffs to be $2,194,000. The defendant deposited that sum with the court in accordance with General Statutes § 48-11, and the court subsequently paid that amount to the plaintiffs in November, 1988. Dissatisfied with the defendant’s estimate, the plaintiffs appealed to the Superior Court, claiming that they had not been justly compensated for the taking of their property. Pursuant to General Statutes § 52-434a, the matter was referred to a three member panel of state trial referees.

At trial, the plaintiffs offered evidence indicating that the highest and best use of the Danbury parcel was as a light industrial development. Vincent McDermott, who was qualified as an expert in the field of land use planning, testified for the plaintiffs. McDermott stated that he had headed a team of experts, hired by the plaintiffs, that had analyzed the development potential of the subject property. The team included John Thompson, a traffic consultant, John Scott, a real estate development consultant, and James MacBroom, a specialist in civil engineering and water resource engineering. The plaintiffs’ team proposed construction on the Danbury parcel of a light industrial development consisting of two one-story buildings with a total floor area of approximately 300,000 square feet. There was testimony that such a development could be used for research laboratories, warehousing, light manufacturing facilities or corporate offices.

The plaintiffs offered further evidence tending to prove that it was feasible to construct the proposed development. McDermott testified that, in determining the feasibility of the project, the team had evaluated the property’s topography, soils, potential for sewage disposal, potential for drainage and accessibility. Additionally, they had considered the zoning regulations that were applicable to the property.

MacBroom testified that he had investigated the capacity of the property to support the proposed development’s projected sewage disposal, drainage and water supply facilities. MacBroom stated that the property contained a large amount of rock ledge that would have to be removed in order to install the industrial facilities, but that he believed that the ledge was an asset because the plaintiffs could sell the crushed rock for profit. MacBroom testified that, in his opinion, the property was suitable to sustain the required sewage disposal system and drainage facilities, and it could supply sufficient water to support the light industrial use of the property. MacBroom also stated that he believed that the plaintiffs could obtain the necessary approvals to construct the sewage, drainage and water supply systems.

Regarding access to the property for industrial use, Thompson testified that several of the surrounding roads, particularly Laurel Lane and Starrs Plain Road, would have to be extensively improved, but that such improvement was possible, and he believed that all of the necessary approvals could be obtained to complete the project. McDermott further testified that it was his belief that all the permits required to construct the entire development could be obtained within a reasonable time. Regarding whether the development would be marketable, Scott testified that he had analyzed the real estate market to determine the potential demand for the proposed light industrial development. Scott concluded that, in 1988, there was a reasonable probability that there would be a significant demand for that type of facility.

As a result of the findings of the plaintiffs’ team, McDermott concluded that, within a reasonable time and with economic feasibility, a light industrial development could be constructed on the Danbury parcel. On the basis of that conclusion, Ronald B. Glendinning, a real estate appraiser, determined that the highest and best use of the plaintiffs’ Danbury parcel was light industrial. He concluded that the highest and best use of the remainder of the land was residential, and he appraised the value of the entire property at $4,409,000.

In contrast, the defendant offered evidence to indicate that the highest and best use of the entire parcel, including the Danbury parcel zoned for light industrial use, was residential. Ronald Ravizza, who was in the business of rock removal, questioned the plaintiffs’ conclusion that the rock ledge on the property was an asset. Ravizza testified that, rather than selling excavated rock, he typically disposed of it. Although he conceded that it was possible that the rock could be crushed and sold or even used by the plaintiffs, Ravizza testified that, in his opinion, it would require considerable expense to remove the rock. Kenneth C. Stevens, a soil scientist, testified regarding the feasibility of constructing a sewage disposal system on the property. He stated that tests he had performed on the property’s soil demonstrated that it had “extremely rapid permeability.” He concluded that, because of the presence of nearby wetlands, it would be difficult to design the large, on-site sewage disposal system that would be necessary to meet department of environmental protection specifications. Warren Herzig, a supervising sanitary engineer for the department of environmental protection, also testified that he did not believe that the property could adequately absorb the amount of sewage that would be produced by the plaintiffs’ proposed industrial development. Amerigo Scarpa, president of a consulting engineering firm, testified that the cost of developing the Danbury parcel as the plaintiffs proposed would be extremely high. He also testified that Starrs Plain Road and Laurel Lane, the access roads to the parcel, would have to undergo very costly upgrading. Scarpa stated that, in his opinion, it was not economically feasible to develop the Danbury parcel as the plaintiffs had proposed because: (1) the costs were too high; (2) it was questionable whether the appropriate permits would be issued to improve the roads; and (3) it was uncertain whether the zoning commission would approve the sewage system.

The defendant also offered the testimony of two professional real estate appraisers, Arthur Oles and John Flint. Oles determined that it would be necessary to access the proposed development via Laurel Lane, which ran through a residential zone. He was aware that Danbury zoning regulations prohibited accessing an industrial zone through a residential zone. Accordingly, he determined that the highest and best use of the entire property was residential, and that it was 100 percent likely that the Danbury parcel could, and would, be rezoned as residential. In Oles’ appraisal report, he stated, “given the residential character of the surrounding neighborhood, the likelihood of a zone change [of the Danbury parcel] from IL-40 industrial to RA-80 residential is considered to be 100 percent.” He also reported that “the subject property industrial acreage has no utility for industrial use. The highest and best use of this acreage is for single-family residential use, with the likelihood of a zone change to RA-80 residential considered to be 100 percent.” Oles appraised the plaintiffs’ property as having a value of $1,172,000.

Flint also concluded that the highest and best use of the entire subject property was residential. Flint testified that he believed that there was inadequate access to the property for industrial purposes and that the property could not support the sewage needs of an industrial use. Flint stated in his appraisal report that the highest and best use for the entire parcel was residential. He stated that his appraisal was contingent upon a zone change, which he believed would occur because the assistant city planner for Danbury had informed him that “there is a stronger possibility of gaining a residential zone change than developing the parcel for industrial use.” Accordingly, Flint appraised the plaintiffs’ property as residential and placed a value upon it of $1,143,000.

The trial court’s memorandum of decision reveals the following findings. It would be more costly to remove the significant amount of bedrock from the plaintiffs’ property than the plaintiffs estimated. Because the sewage system would cross wetlands and because the land was so highly permeable, it would be difficult and costly to install the proposed sewage system. The court also found that the unusual costs of preparing the site, those above and beyond the usual costs of development, would amount to $3,100,000, and the necessary costs of improving Laurel Lane and Starrs Plain Road would amount to $1,600,000, “which is far in excess of the plaintiffs’ estimates.” The court also found that the process of securing permits from Danbury, the state of Connecticut, and the federal government for industrial development would be long and expensive. The court concluded that the “extremely high” costs of the project made “use of the premises for light industrial buildings unfeasible.” The court stated that “[t]he proposed subdivision of the plaintiffs . . . has no reasonable probability of reaching fruition in the near future . . . .” Accordingly, the court concluded that the highest and best use of the entire property was residential, assessed the value of the land as $1,763,452 and ordered the plaintiffs to repay the state $430,548.

In this appeal, the plaintiffs claim that the trial court: (1) improperly valued the Danbury parcel as residential property because it was zoned light industrial; (2) improperly held the plaintiffs jointly and severally liable for payment of the judgment in favor of the defendant; and (3) improperly ordered the plaintiffs to post a bond to secure the judgment being appealed.

I

The plaintiffs first claim that the trial court improperly concluded that the highest and best use of the Dan-bury parcel was residential and, therefore, incorrectly determined its value as residential property. The plaintiffs assert that the trial court’s conclusion was improper because at the time of its taking the Danbury parcel was zoned industrial, and the trial court failed to find that it was reasonably probable that the zone would be changed to residential. Further, the plaintiffs argue that, even if the trial court found that it was reasonably likely that such a zone change would occur, that finding was not supported by the evidence. We disagree with both of the plaintiffs’ contentions.

“ ‘The owner of land taken by condemnation is entitled to be paid just compensation. . . .’ ” Minicucci v. Commissioner of Transportation, 211 Conn. 382, 384, 559 A.2d 216 (1989); Conn. Const., art. I, § 11. The amount that constitutes just compensation is the market value of the condemned property when put to its highest and best use at the time of the taking. Minicucci v. Commissioner of Transportation, supra; Cappiello v. Commissioner of Transportation, 203 Conn. 675, 681, 525 A.2d 1348 (1987); Budney v. Ives, 156 Conn. 83, 88, 239 A.2d 482 (1968). In determining market value, “it is proper to consider all those elements which an owner or a prospective purchaser could reasonably urge as affecting the fair price of the land . . . .” Budney v. Ives, supra. Because a change in zoning restrictions obviously could affect the price of real property, “where such a change is reasonably probable and not merely a remote or speculative possibility, the probability may properly be considered in the determination of the fair value” of the property. Id.; Transportation Plaza Associates v. Powers, 203 Conn. 364, 375, 525 A.2d 68 (1987). “[T]he true issue is, not the value of the property for the use which would be permitted if a change in zone was made, but the value of the property as zoned at the time of the taking as it is affected by the probability of a change.” Budney v. Ives, supra, 89.

A

Initially, the plaintiffs contend that the trial court failed to find that a change in the zone of the Danbury parcel from industrial to residential was reasonably probable. In the absence of such a finding, the plaintiffs assert that the trial court should have valued the parcel as industrial property. We conclude that the trial court implicitly found that such a zone change was reasonably probable.

Throughout its memorandum of decision the trial court recognized that, at the time of the taking, the Danbury parcel had been zoned industrial, and that the remainder of the subject property had been zoned residential. The trial court listed numerous reasons why the plaintiffs’ proposed industrial development would be excessively costly to construct, and concluded that it was not feasible. The court also stated that it had considered the testimony of the real estate experts and had given such credibility to that testimony as the court had been convinced it deserved. One of those experts, Oles, had offered evidence to indicate that a zone change of the Danbury parcel from industrial to residential was 100 percent likely. Another expert, Flint, offered evidence that he believed that such a change would occur, as well. Although the court failed to refer explicitly to the probability of a zone change in its memorandum of decision, it stated therein that it valued all of the property, including the industrially zoned Danbury parcel, as residential.

Unquestionably, it would have been improper for the trial court to value the Danbury parcel as residential if it had found that the property would remain industrially zoned and, therefore, could not be legally used for residential purposes. This, the plaintiffs urge, underscores the magnitude of the trial court’s error in valuing the Danbury parcel as residential without a finding that a change of zone was probable. A far more sensible view of the trial court’s decision, however, is that it recognized that the plaintiffs’ proposed industrial development was not feasible, accepted the testimony of Oles and Flint and concluded that it was reasonably probable that the zone would be changed to residential, but did not explicitly so state in the memorandum. Although Practice Book § 4059 provides that a memorandum of decision must state conclusions on each claim of law and also the factual bases for those conclusions, we have held that it is not essential that each factor which may reasonably affect the value of property be “meticulously recited in the memorandum.” McDermott v. New Haven Redevelopment Agency, 184 Conn. 444, 446, 440 A.2d 168 (1981). Our conclusion that the trial court implicitly found that a zoning change was reasonably probable “comports with our ordinary practice of reading an ambiguous trial court record so as to support, rather than contradict, its judgment. . . .’’(Citation omitted.) Lauer v. Zoning Commission, 220 Conn. 455, 469-70, 600 A.2d 310 (1991). Moreover, to the extent that the plaintiffs believed that the trial court’s memorandum of decision was unclear, they had an obligation to move the trial court for articulation, which they failed to do. Practice Book § 4051; McLaughlin v. Bronson, 206 Conn. 267, 277-78, 537 A.2d 1004 (1988). Therefore, we conclude that the trial court’s memorandum adequately expressed the court’s finding that industrial development was not feasible and that a zone change to residential was reasonably probable.

B

Next, the plaintiffs claim that even if the trial court found that a zone change was reasonably probable, the evidence offered was insufficient to support that finding. We are unpersuaded.

When making the difficult determination of whether a zone will be changed in the future, the trial court should cautiously examine the evidence offered. Budney v. Ives, supra, 90. The questions of the highest and best use of property and of the reasonable probability of a zone change are, however, questions of fact for the trier. Stamford Apartments Co. v. Stamford, 203 Conn. 586, 592, 525 A.2d 1327 (1987); Transportation Plaza Associates v. Powers, supra; Levine v. Stamford, 174 Conn. 234, 235, 386 A.2d 216 (1978); Lynch v. West Hartford, 167 Conn. 67, 74, 355 A.2d 42 (1974). We will not disturb the court’s findings on those issues unless they are clearly erroneous. Transportation Plaza Associates v. Powers, supra, 378.

In its memorandum of decision, the court stated that the Danbury parcel could not feasibly support an industrial use. Its finding was based upon the evidence that it would be extraordinarily costly to: (1) remove the bedrock from the property; (2) install an effective sewage system; (3) upgrade the surrounding roads; and (4) obtain the necessary permits to complete the project. In addition, Oles and Flint, professional appraisers, offered their testimony regarding the probability of a zone change. Oles stated that he believed that a zone change of the Danbury parcel from industrial to residential was 100 percent likely. Flint, having discussed the issue with the Danbury assistant town planner, reported that a zone change was more likely than the use of the Danbury parcel for industrial purposes. The plaintiffs offered no evidence to challenge the opinions of Oles or Flint that a zone change was likely, and it was within the trial court’s discretion to accept the testimony of the defendant’s appraisers. Stamford Apartments Co. v. Stamford, supra; Transportation Plaza Associates v. Powers, supra, 377-78.

Although the plaintiffs assert that the defendant’s proof was insufficient in part because they offered no testimony from voting members of the Danbury zoning commission, we have held that “[p]roof of the reasonable probability that land could be put to a particular use need not be established by the testimony of the particular administrative officials involved.” Transportation Plaza Associates v. Powers, supra, 377. While it is true that “[wjishful thinking, optimistic conjecture, speculation, rumor and unfounded prognostications do not furnish a proper basis for a finding that a litigant has proved the reasonable probability of a future change in zone,” the trial court’s decision in this case was firmly based on evidence in the record. Budney v. Ives, supra, 89-90; see Heath v. Commissioner of Transportation, 175 Conn. 384, 387-90, 398 A.2d 1192 (1978) (testimony of one appraiser, in conjunction with the observable industrial use in the vicinity was a sufficient basis upon which to find a reasonable probability of a zone change to industrial); Lynch v. West Hartford, supra, 74-75 (testimony of two appraisers, and the fact that the land was currently being used, without objection, for industrial purposes provided sufficient basis to conclude that a zone change to industrial was reasonably probable). The trial court’s finding that the highest and best use of the Danbury parcel was residential was not clearly erroneous. Transportation Plaza Associates v. Powers, supra, 378.

II

The plaintiffs next claim that the trial court improperly held that they were jointly and severally liable for payment of the judgment against them. The plaintiffs assert that, because they held the property as tenants in common, they are liable for payment of the judgment only in proportion to their respective percentage interests in the property. We decline to decide the issue raised by the plaintiffs because the trial court did not, in fact, hold the plaintiffs jointly and severally liable.

In its memorandum of decision and in its written judgment, the trial court stated that the plaintiffs had been paid $430,548 in excess of the damage they sustained, and “[t]hey are ordered to repay that amount to the State of Connecticut.” Subsequently, the plaintiffs moved the trial court to articulate whether the plaintiffs’ liability was joint and several or only several. The trial court denied the motion for articulation, stating that, pursuant to General Statutes § 48-10, its authority was “limited to the assessment of damages,” and “[i]t has no authority to decide the issue of the respective liabilities of the plaintiffs to repay the state.”

The plaintiffs state on appeal that, because the trial court denied their motion for articulation, they “shall assume the worst for purposes of this appeal, and consider the liability imposed by the judgment as joint and several . . . .” That assumption is in direct contradiction to the trial court’s explicit statement that it could not decide the issue of the parties’ respective liability for damages. Furthermore, the plaintiffs do not claim that the trial court improperly interpreted its jurisdiction as granted by § 48-10, or that it improperly refused to decide the issue of their respective liabilities. Because we will not render a purely advisory opinion, we decline the plaintiffs’ invitation to “assume the worst,” and, therefore, will not consider this issue further. Moshier v. Goodnow, 217 Conn. 303, 306, 586 A.2d 557 (1991); Lehrer v. Davis, 214 Conn. 232, 234-35, 571 A.2d 691 (1990); Singh v. Singh, 213 Conn. 637, 654, 569 A.2d 1112 (1990). If the plaintiffs are unable to agree with the defendant on their individual responsibility for repayment, that issue will have to be resolved in a separate action.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 48-11 provides: “Whenever the state takes property under any provision of the general statutes or any special act, and the state and the owner or owners of such property or of any interest therein are unable to agree on the amount to be paid as just compensation for such property, the taking authority shall file, with the clerk of the court to which a petition for the assessment of just damages has been preferred, a statement of the sum of money estimated by such authority to be just compensation for the property or interest therein taken. Such sum shall be deposited in said court to the use of the person or persons entitled thereto and notice of such deposit shall be given to such person or persons by such clerk. The court may require such person or persons to give bond to the state conditioned on the repayment to the state of so much of such deposit which may be withdrawn as exceeds the amount of compensation finally awarded. Interest shall not be allowed in any judgment on so much of such amount as had been deposited in said court. Upon the application of any such owner or owners, the court, after determining the equity of the applicant in such deposit, may order that the money so deposited, or any part thereof, be paid forthwith for or on account of the just compensation to be awarded in such proceeding. If the compensation finally awarded exceeds the total amount of money so deposited or received by any person or persons entitled thereto, the court shall enter judgment against the state for the amount of the deficiency.”

       General Statutes § 52-434a provides: “(a) In addition to the powers and jurisdiction granted to state referees under the provisions of section 52-434, a chief justice or judge of the supreme court, a judge of the appellate court, a judge of the superior court or a judge of the court of common pleas, who has ceased to hold office as justice or judge because of having retired and who has become a state referee and has been designated as a trial referee by the chief justice of the supreme court shall have and may exercise, with respect to any civil matter referred by the chief court administrator, the same powers and jurisdiction as does a judge of the court from which the proceedings were referred.
      “(b) In condemnation proceedings in which the assessment fixed by the condemning authority exceeds the sum of two hundred thousand dollars the court may, at the request of either party, or on its own motion, refer the proceedings to the chief court administrator for referral to a committee of three such referees who, sitting together, shall hear and decide the matter. In such matters in which the fees payable to a referee are to be paid by the state, each such referee shall be reimbursed as provided in section 52-434.
      “(c) The power conferred by this section may be exercised by any such state referee, whether acting in his capacity as a state referee, or as an auditor, or as a committee of one, or by any committee composed of not more than three such state referees, with respect to any civil matter referred to him or to it, the provisions of any general or special law to the contrary notwithstanding. ’ ’

       Because we conclude, as the plaintiffs conceded at oral argument, that the claim that they were improperly ordered to post bond has become moot, we will not consider it.

       Practice Book § 4051 provides in relevant part: “A motion for rectification or articulation shall be filed in triplicate with the chief clerk of the supreme court and forwarded by such clerk to the trial judge. The trial judge shall file the ruling on the motion with the chief clerk of the supreme court.
      “Any motion seeking corrections in the transcript or the trial court record which depend on proof of matters not of record or seeking an articulation or further articulation of the decision of the trial court shall be determined by the judge of the trial court whence the appeal is taken or the reservation is made. The trial court may make such corrections or additions as are necessary for the proper presentation of the preliminary statement of issues or for the proper presentation of questions reserved; or the trial court may approve a stipulation of counsel that such a correction or addition be made, provided the motion or stipulation is presented before the appeal is ready to be assigned for hearing and only by leave of the supreme court thereafter. The action of the trial judge as regards such a correction or addition may be reviewed by the supreme court under §4054. . . .”

       General Statutes § 48-10 provides: “The determination of the amount of damages in any case brought by the state to condemn land or any interest therein shall be referred to a state referee.”


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    AirKaman, Inc., et al. v. John G. Groppo, Commissioner of Revenue Services
    (14386)
    Peters, C. J., Shea, Callahan, Glass and Berdon, Js.
    Argued January 9
    decision released April 28, 1992

      Edward T. Blair, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant-appellee (defendant).

      Martin J. Albert, with whom was Richard J. DiMarco, for the appellees-appellants (plaintiffs).
   Shea, J.

The principal issue in this tax appeal is whether the trial court correctly interpreted the term “management services” in General Statutes (Rev. to 1985) § 12-407 (2) (i) (K), subsequently redesignated and referred to herein as § 12-407 (2) (i) (J), to include only management consulting services and not day-today operational management services. After a determination by the defendant, the commissioner of revenue services, that the plaintiffs, AirKaman, Inc. (AirKaman), and Combs Gates Bradley, Inc. (Combs Gates), were liable for deficiency assessments for sales and use tax for the sale of services claimed to constitute “management services,” the plaintiffs paid the tax and interest assessed, but filed claims for refund with the department of revenue services. When the claims for refund were denied, the plaintiffs appealed to the Superior Court pursuant to General Statutes § 12-422. That court sustained the plaintiffs’ appeal, concluding that the statutory term “management services” was limited to management consulting services. Since the plaintiffs had not rendered any such services, the court determined that the commissioner’s assessment was incorrect. The commissioner then appealed to the Appellate Court, and the plaintiffs cross appealed. We transferred the case to this court pursuant to Practice Book § 4023. We affirm in part and reverse in part.

The parties stipulated to the following facts. In September, 1969, Uniroyal, Inc. (Uniroyal), entered into a lease with the state of Connecticut in which Uniroyal agreed to manage the fixed base operation of the Oxford Airport from November 1, 1969, through October 31,1989. Uniroyal was permitted to sublet with the approval of the state. In December, 1981, Uniroyal entered into a sublease with AirKaman, in which AirKaman agreed to assume Uniroyal’s duties for the fixed base operation of the airport from December, 1981, through December, 1984. The sublease provided that AirKaman would receive as compensation $650 per week plus 40 percent of the net income generated. In addition, AirKaman would be reimbursed for all costs incurred in connection with the fixed base operation. In December, 1984, Uniroyal entered into a similar sublease with Combs Gates in which Combs Gates agreed to be the fixed base operator from January 1, 1985, through October 31, 1989, in exchange for $710 per week plus 40 percent of the net income and the reimbursement of costs incurred in connection with the fixed base operation. While the subleases were in effect, AirKaman and Combs Gates billed Uniroyal for the management fee (the fixed weekly fee plus the percentage of profit) and for reimbursement of operating costs, which included payroll and payroll expenses, accounting fees, payroll services fees and insurance premiums. Only the management fee and the reimbursement received for payroll and payroll expenses are involved in the present appeal, however, because the commissioner has conceded that the reimbursement for the other operating costs was not taxable.

In this appeal, the commissioner claims that: (1) the term “management services” in § 12-407 (2) (i) (J) includes day-to-day operational management and, therefore, the trial court incorrectly sustained the plaintiffs’ appeal on the ground that the term was limited to services of a consultative nature; and (2) both the management fee and the payroll reimbursement received by the plaintiffs were taxable as consideration for the rendering of management services. Although we agree with the commissioner that “management services” includes hands-on management as well as consulting, we conclude that only the management fee, and not the amount received as payroll reimbursement, was taxable under §§ 12-408 (1) and 12-407 (2) (i) (J) as consideration for the rendering of management services.

In their cross appeal, the plaintiffs maintain that the trial court improperly denied their request to amend their complaint to include allegations that the management services rendered were not sold “at retail” and accordingly were not taxable under General Statutes § 12-408 (l).* **** Their proposed amendment also alleged that the management services sold by the plaintiffs to Uniroyal were in turn resold to the state, thus entitling the plaintiffs to an exemption under General Statutes § 12-412 (l). We conclude that the trial court acted within its discretion when it denied the plaintiffs’ request to amend the complaint.

I

A

During the tax years in question, § 12-408 (1) imposed a tax on “gross receipts . . . from the rendering of any services constituting a sale in accordance with subdivision (i) of subsection (2) of section 12-407 . . . .” Among those services constituting a sale were “business analysis and management services.” General Statutes § 12-407 (2) (i) (J). The commissioner maintains that the term “management services” includes operational management as well as management consulting, that the language of the statute is clear on this point, thus obviating the need to look beyond the statute to other interpretive aids such as regulations and legislative history and, finally, that, even if resort is had to such interpretive aids, they reinforce the claim that day-to-day management is included in the term “management services.” The plaintiffs argue that the trial court correctly concluded that the term was ambiguous and that reference to other parts of the same statute, legislative history, regulations and subsequent statutory amendments supports the interpretation of “management services” as limited to management consulting services. We agree with the commissioner that the plain language of the statute includes actual hands-on management and that the interpretive aids utilized by the trial court serve to reinforce that conclusion.

“In construing any statute, we seek to ascertain and give effect to the apparent intent of the legislature.” United Illuminating Co. v. Groppo, 220 Conn. 749, 755, 601 A.2d 1005 (1992). “[T]o discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 589, 522 A.2d 771 (1987). Because the statute to be interpreted concerns the imposition of a tax, and not a taxpayer’s claimed right to an exemption or deduction, we must strictly construe any ambiguity in the statute against the taxing authority and in favor of the taxpayer. Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 420-23, 521 A.2d 569 (1987).

“Where a statute . . . does not define a term, it is appropriate to focus upon its common understanding as expressed in the law and upon its dictionary meaning.” Ziperstein v. Tax Commissioner, 178 Conn. 493, 500, 423 A.2d 129 (1979). Because “management services” was not defined in the Sales and Use Taxes Act, we turn to the dictionary definition of the operative word, “management,” to find its commonly approved meaning. “Management” has been defined as “the conducting or supervising of something (as a business); esp: the executive function of planning, organizing, coordinating, directing, controlling, and supervising any industrial or business project or activity with responsibility for results.” Webster’s Third New International Dictionary. Because actual operation of something is a commonly approved meaning of the word “management,” the words “management services” in § 12-407 (2) (i) (J) logically comprehend such an activity. The statute contains no language excluding that commonly understood meaning from its purview. To adopt the plaintiffs’ view that “management” does not include actual operation would ignore the word’s intendment in ordinary parlance. “In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language . . . .” General Statutes § 1-1 (a). Accordingly, we conclude that the term “management services” includes the actual operation of a business or other concern.

In construing “management services” in § 12-407 (2) (i) (J) to mean management consulting services, the trial court referred to the preceding subdivision of the same statute, which referred to “services to industrial, commercial or income-producing real property, including but not limited to, such services as management, maintenance, janitorial, electrical . . . .” (Emphasis added.) The court determined that interpreting “management services” in subdivision (J) to include actual operation of a business would be redundant because such services had already been covered by the legislature’s use of the word “management” in the preceding subdivision. Attempting to reconcile what it perceived to be an incongruity in the statute, the court assigned one meaning to “management” in the preceding subdivision, i.e., day-to-day operation, and a different meaning to “management” in subdivision (J), i.e., management consulting.

The trial court’s approach ignored the “familiar principle of statutory construction that where the same words are used in a statute two or more times they will ordinarily be given the same meaning in each instance.” State ex rel. Hyde v. Dowe, 129 Conn. 266, 271, 28 A.2d 12 (1942). We see no redundancy in construing “management” to include day-to-day operation in both subdivisions of the statute because the preceding subdivision addresses itself to management in the real estate context, while subdivision (J) is concerned with management in the business context. In using the word management in both subdivisions, the legislature clearly intended to make the rendering of managerial services taxable in both settings. Because it decided to place two broad, service-related fields, such as real estate and business, in separate subdivisions, it logically included the word “management” within each to describe a taxable kind of service within that field. This interpretation heeds another maxim of statutory construction, that every part of a statute “ ‘should, so far as possible, be made operative and harmonious with every other part.’ ” State v. Dorau, 124 Conn. 160, 168, 198 A. 573 (1938).

Our conclusion finds further support in a regulation promulgated by the commissioner, which was in effect during the tax years in question. Section 12-426-27 (b) (10) (b) of the Regulations of Connecticut State Agencies, which defines the statutory term “business analysis and management services,” provides in pertinent part: “Management services mean and include the furnishing of a wide variety of general or specialized management consulting services, such as business analysis, business research, industrial management, marketing research, and personnel management and training.” Another paragraph of the regulation provides: “The term ‘includes’ when used in a definition contained in this regulation shall not be deemed to exclude other things otherwise within the meaning of the term defined.” Regs., Conn. State Agencies § 12-426-27 (b) (11) (k). Although the trial court concluded that the regulation supports the interpretation that “management services” means only management consulting services, we disagree with that analysis.

While the regulation obviously seeks to point out that services of a consultative nature fall within the definition of “business analysis and management services” and are thus taxable, the commissioner’s use of the word “include” indicates that this definition of the statutory term is not exclusive, but that “other things otherwise within the meaning of the term defined” remain within the definition. Id. Operational management, as the commonly understood meaning of “management services,” would not, therefore, be excluded from the definition. The trial court’s conclusion, that only management consulting services were within the definition, was predicated on the mistaken belief that the “term defined” was management consulting services and that the regulation, therefore, did not exclude other types of management consulting services, but excluded anything other than consulting services. In fact, the “term defined” by the regulation was the statutory term, “management services,” whose definition was not limited solely to consulting services. In all likelihood, the commissioner promulgated this regulation to ensure that consulting services, which might not otherwise be regarded as “management services,” because they are not thus commonly referred to, would be taxed in the same manner as operational management services, the type of services commonly understood to fall within the statutory term. The most logical reading of the regulation, given the presence of the word “include,” is that it seeks to make clear that consulting services are within the definition of “management services” without excluding any other services, such as day-to-day operation, which would already be within the ordinary meaning of the statutory term.

The legislative history of § 12-407 (2) (i) (J) also indicates a definition of “management services” that is broader than management consulting services. Asked to define “management services” during the House debate on the bill, Representative James J. Clynes, then chairman of the finance committee stated, “I would say that that’s an establishment primarily engaged in furnishing a wide variety of general or specialized management consulting services such as, business analysts [sic], business research, efficiency, industrial management, marketing research, personal [sic] management.” 18 H.R. Proc., Pt. 7,1975 Sess., p. 3097. When asked if his definition included the management of real estate properties, Clynes replied affirmatively. Id., pp. 3097-98. Like the regulation promulgated years later, Clynes’ remarks surely include consulting services within the category of “management services.” In light of Clynes’ subsequent inclusion of realty management within the definition, however, it is plain that actual operation, along with consulting, was meant to be encompassed by the statutory term. In concluding that only consulting services were “management services,” the trial court disregarded Clynes’ remarks about realty management, characterizing them as inadvertent and inconsistent with the thesis that only consulting services were included in the statute. We agree that dynes’ remarks were incompatible with the plaintiffs’ position, but, rather than ignoring those remarks, we recognize that they buttress the commissioner’s argument that “management services” includes operational management as well as consulting.

We note finally that subsequent amendments to § 12-407 (2) (i) (J) in 1989 and 1990, which we may consider in order to illuminate the legislature’s intent with respect to its prior legislative action; Baker v. Norwalk, 152 Conn. 312, 317, 206 A.2d 428 (1965); lend further support to the commissioner’s argument. In 1989, subdivision (J) was amended to add references to consulting and public relations services. Public Acts 1989, No. 89-251. The subdivision was amended again in 1990 to its current wording, “business analysis, management, management consulting and public relations services.” Public Acts 1990, No. 90-148. The plaintiffs argue that these amendments reflect a change from the earlier version of the statute in that they made operational management services taxable when they had not been taxable previously. We disagree with this contention.

The amendments simply added “management consulting services and public relations services” to “business analysis and management services,” as the subsection provided during the taxable period involved. Their apparent purpose was to resolve any question concerning management consulting services and public relations services in favor of taxability. No change was made in the scope of the term “management services.” If operational management services are now taxable, as the plaintiffs implicitly concede for the purpose of this argument, it is because they were “management services” before the amendment as well as afterwards. If the members of the General Assembly had desired to broaden the scope of that term because they viewed “management services” as limited to management consulting services, as the plaintiffs contend, they would have likely added “operational management services” to the amendments. Instead, they retained the term “management services” without change. The specific reference to management consulting services in the amendment suggests that “management services” imports a meaning distinct from those services. As we have already noted, actual operation is the commonly approved meaning of “management.” The legislature’s retention of that word together with its addition of consulting services is a significant indication that operational management services were taxable as “management services” under § 12-407 (2) (i) (J) during the tax years in question.

B

Having determined that the actual operation of a business is included within the term “management services,” we must now consider whether both the management fee and the reimbursement for payroll and payroll expenses were taxable as a consideration for the rendering of management services under § 12-407 (2) (i) (J). The plaintiffs concede that, if the term “management services” includes the day-to-day operation of a business, the management fee would be taxable under the statute, but they argue that the reimbursement was not taxable because it was merely the return of out-of-pocket expenses incident to the operation of the airport and not a consideration paid to the plaintiffs for operating the airport. The commissioner maintains that the reimbursement also constituted consideration for the management services performed by the plaintiffs because, in each lease agreement, reimbursement is mentioned in the paragraph entitled “Compensation.” We agree with the plaintiffs that only the management fee constituted a consideration for the rendering of management services and, therefore, affirm the trial court’s judgment sustaining the plaintiffs’ appeal with respect to the reimbursement for payroll expenses.

To decide whether and to what extent a sales tax is applicable, we must determine the true object of the transaction between the plaintiffs and Uniroyal. Dine Out Tonight Club, Inc. v. Department of Revenue Services, 210 Conn. 567, 571, 556 A.2d 580 (1989); American Totalisator Co. v. Dubno, 210 Conn. 401, 406, 555 A.2d 414 (1989). The lease agreements between Uniroyal and the plaintiffs disclose arrangements whereby each plaintiff essentially undertook to act as Uniroyal’s agent by managing the fixed base operation, which included collecting revenue and paying expenses on behalf of Uniroyal. The agreements provide: “It is expressly understood and agreed that all revenue derived and costs and expenses incurred by AirKaman [Combs Gates] in connection with the management and operation of the fixed-base operation at the Airport shall be incurred on behalf of and solely for the benefit of Uniroyal. . . .” Regarding expenditures, “[i]t is understood [that] AirKaman [Combs Gates] will pay directly certain costs of the fixed-base operation at the Airport such as payrolls, equipment usage fees, insurance, allocated overhead charges, etc. . . .’’In the paragraph entitled “Compensation,” the agreements state: “In consideration of the performance of the management and operations functions as set forth in paragraph 1 above, Uniroyal shall pay AirKaman [Combs Gates] an operating fee of Six Hundred Fifty Dollars ($650) [Seven Hundred ten dollars ($710)] per week during the term hereof . . . in addition to reimbursement for all costs incurred in connection with the fixed-base operation. ” (Emphasis added.)

General Statutes § 12-408 (1) levies a tax on “any sales as defined in subsection (2) of section 12-407, at retail, in this state for a consideration. . . .’’(Emphasis added.) Because “consideration” is not defined in the Sales and Use Taxes Act, we look to the dictionary definition to ascertain its “commonly approved usage.” General Statutes § 1-1 (a); Ziperstein v. Tax Commissioner, supra. “Consideration” means “something given as recompense,” a “payment, reward.” Webster’s Third New International Dictionary. The commissioner’s position is that, pursuant to their respective agreements with Uniroyal, the plaintiffs had agreed that part of their recompense for operating the airport would be the return to them of payroll expenses incurred on behalf of Uniroyal in the course of that operation. The notion that reimbursement for out-of-pocket expenditures could constitute a consideration for services rendered is contrary to the concept of payment or recompense. Cf. International Business Machines Corporation v. Brown, 167 Conn. 123, 132, 355 A.2d 236 (1974). According to the commissioner’s view, a company that agreed to manage a business for another company and received only reimbursement for incidental expenses incurred in the management of that business and no fee or other profit from the arrangement would have to pay a tax on the reimbursement received. The imposition of a sales tax under such circumstances would be improper because a mere transfer of expenses between parties cannot be regarded as a sale of services. That is precisely the situation in this case, in which the fee earned by the plaintiffs clearly constituted payment for managerial services rendered, while the reimbursement received by them was simply the return of moneys expended by the plaintiffs on Uniroyal’s behalf. Each plaintiff acted as a mere conduit for Uniroyal with respect to operational expenses and realized no recompense for its services simply by being reimbursed by Uniroyal for its outlay.

We note also that the commissioner has conceded that the reimbursement received for expenses other than payroll was not taxable as a consideration received for the sale of services, under § 12-408 (1). The only basis offered by the commissioner for distinguishing payroll expenses from other expenses for purposes of the Sales and Use Taxes Act is his statement at oral argument that payroll is a “direct” operating expense while the other expenses, such as insurance premiums, accounting fees and other service fees, are “indirect” expenses. We fail to see in the commissioner’s argument any logical basis for treating payroll reimbursement differently from reimbursement for other operating expenses. Without evidence that the payroll reimbursement included some payment to the plaintiffs for their managerial services in addition to the amounts they had expended, we conclude that such reimbursement is not taxable as a consideration for the rendering of management services.

II

We now consider the plaintiffs’ argument that a new trial should be ordered because the trial court improperly denied their request to amend their complaint. Some background information is necessary for the proper analysis of this claim. The plaintiffs’ original three count complaint was filed in the trial court on June 15,1987. It set forth the following claims: (1) the term “management services” does not include actual day-to-day operation; (2) even if “management services” includes operational management, the commissioner incorrectly denied in their entirety the plaintiffs’ claims for refund because a portion of the amount paid was not properly taxable; and (3) the services performed by the plaintiffs were not subject to sales tax because each plaintiff was involved in a joint venture with Uniroyal. A stipulation of facts was filed on December 30, 1987. The commissioner filed his trial brief on November 15,1988. On December 1,1988, the plaintiffs filed their request for leave to amend the complaint by adding a fourth count, which alleged that the plaintiffs were entitled to an exemption pursuant to General Statutes § 12-412 (l) because the services they had rendered to Uniroyal were in turn resold by Uniroyal to the state pursuant to Uniroyal’s lease with the state, and, therefore, no sale at retail had occurred, as required by § 12-408 (1) for the imposition of a tax. Thereafter, the commissioner filed an objection to the request to amend, which was sustained by the trial court on December 20,1988. After the trial court had denied their subsequent motion for reconsideration, the plaintiffs filed a notice of appeal on February 13,1989, in accordance with Practice Book § 4002.

“While our courts have been liberal in permitting amendments; Johnson v. Toscano, 144 Conn. 582, 587, 136 A.2d 341 (1987); this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment. Cummings v. General Motors Corporation, 146 Conn. 443, 449-50, 151 A.2d 884 (1959). The motion to amend is addressed to the trial court’s discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial. Freccia v. Martin, 163 Conn. 160, 164, 302 A.2d 280 (1972).” Beckman v. Jalich Homes, Inc., 190 Conn. 299, 302-303, 460 A.2d 488 (1983). “Whether to allow an amendment is a matter left to the sound discretion of the trial court. This court will not disturb a trial court’s ruling on a proposed amendment unless there has been a clear abuse of that discretion.” Falby v. Zarembski, 221 Conn. 14, 24, 602 A.2d 1 (1992). “It is the [plaintiffs’] burden in this case to demonstrate that the trial court clearly abused its discretion.” Kelley v. Bonney, 221 Conn. 549, 591, 606 A.2d 693 (1992).

The plaintiffs claim that allowing the amendment would not have unfairly surprised the commissioner because the issues raised in the proposed amendment had previously been raised in the plaintiffs’ administrative protest of the assessments. The plaintiffs maintain, moreover, that the amendment would not have occasioned any delay in the trial because all the facts necessary for analyzing the new issues were contained within the stipulation of facts that had already been filed. The commissioner maintains that the request to amend was untimely since it was filed after the commissioner had submitted his trial brief and the proposed amendment would have injected an entirely new issue into the case, which would have necessitated further factual investigation, such as the deposing of Uniroyal personnel, in order for the court to decide the “sale for resale” issue. We conclude that the plaintiffs have not demonstrated that the trial court clearly abused its discretion by forbidding the amendment.

Although it appears that the plaintiffs did raise the “sale for resale” issue when they contested the assessments at the administrative level, their original complaint in the trial court contained no such allegations. The plaintiffs waited until after the pleadings had been closed and after the commissioner had submitted his trial brief to seek permission to amend their complaint. The trial court could reasonably have concluded that additional discovery would have been necessary to adjudicate the “sale for resale” claim raised in the proposed amendment and that undue delay would have been caused thereby. This is especially true in light of the fact that the proposed amendment alleged a statutory right of exemption, unlike the claims already pleaded, which involved the propriety of imposing a tax in the first instance. In view of these circumstances, we conclude that the trial court did not clearly abuse its discretion in denying the plaintiffs’ request to amend their complaint.

The judgment is affirmed with respect to the tax assessment on the reimbursement of payroll expenses received by the plaintiffs and is reversed and remanded with direction to deny the plaintiffs’ appeal with respect to the tax assessment on the management fee.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1985) § 12-407 (2) (i) (K) provides: “definitions. Whenever used in this chapter ... (2) ‘Sale’ and ‘selling’ mean and include . . . (i) the rendering of certain services for a consideration, exclusive of such services rendered by an employee for his employer, as follows . . . (K) business analysis and management services . . . .” (Emphasis added.)
      From 1981 to 1985, the tax years in question, the pertinent subdivision was lettered “(K).” It was, however, changed to “(J)” in 1986 by an amendment that deleted a previous subdivision, requiring the relettering of all subsequent paragraphs. See Public Acts 1986, No. 86-397, § 7.

       See General Statutes § 12-425.

       General Statutes § 12-422 provides in relevant part: “Any taxpayer aggrieved because of any order, decision, determination or disallowance of the commissioner of revenue services under section 12-418, 12-421 or 12-425 may, within one month after service upon the taxpayer of notice of such order, decision, determination or disallowance, take an appeal therefrom to the superior court for the judicial district of Hartford-New Britain, which shall be accompanied by a citation to the commissioner of revenue services to appear before said court.”

       AirKaman and Combs Gates did not charge any sales or use tax on their billings to Uniroyal.

       This issue should not have been raised on a cross appeal because the plaintiffs were not aggrieved by the judgment of the trial court. See Practice Book § 4005. We shall, however, consider their argument as a “claim that a new trial rather than a directed judgment should be ordered if the [commissioner] is successful on the appeal,” because the plaintiffs have filed a preliminary statement of issues within fourteen days from the filing of the commissioner’s preliminary statement of the issues. Practice Book § 4013 (a) (1) (C); see also Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 547 n.1, 552 A.2d 796 (1989).

       General Statutes (Rev. to 1985) § 12-408 (1) provides: “For the privilege of making any sales as defined in subsection (2) of section 12-407, at retail, in this state lor a consideration, a tax is hereby imposed on all retailers at the rate of seven and one-half per cent of the gross receipts of any retailer from the sale of all tangible personal property sold at retail or from the rendering of any services constituting a sale in accordance with subdivision (i) of subsection (2) of section 12-407 . . . .”

       General Statutes § 12-412 (1) provides: “Taxes imposed by this chapter shall not apply to the gross receipts from the sale of and the storage, use or other consumption in this state with respect to the following items: (1) The United States, the state or subdivisions. Sales of tangible personal property or services to the United States, the state of Connecticut or any of the political subdivisions thereof, or its or their respective agencies.”

       We accord great deference and weight to the commissioner’s regulatory interpretation of a statute he is charged with administering. Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 128-29, 527 A.2d 672 (1987).

       See footnote 5, supra.

       The third claim has not been pursued by the plaintiffs in this appeal.

       The plaintiffs have also argued the merits of the “sale for resale” claim. Because we have concluded that the trial court did not abuse its discretion in prohibiting the plaintiffs from adding such a claim to their complaint, we need not consider the argument with respect to the merits of the issue because “the charges in the complaint frame the issues to be decided by the hearing tribunal.” Veeder-Root Co. v. Commission on Human Rights & Opportunities, 165 Conn. 318, 329, 334 A.2d 443 (1973).


author: Borden, J.

text:
    American National Fire Insurance Company et al. v. John Schuss et al.
    (14369)
    Peters, C. J., Shea, Covello, Borden and Berdon, Js.
    Argued January 8
    decision released April 28, 1992

      David C. Shaw, for the appellant (named plaintiff).

      Lois Tanzer, with whom, on the brief, was Thomas 0. Anderson, for the appellee (defendant Barry Sehuss).
   Borden, J.

The dispositive issue in this appeal is whether the plaintiff, American National Fire Insurance Company, produced sufficient evidence for a jury to find that the defendant, Barry Sehuss, acted negligently, rather than intentionally, when he set fire to a synagogue in West Hartford in the early morning hours of August 11, 1983. The fire destroyed, among other things, the synagogue’s Torah scrolls, which were located in the ark in the main sanctuary.

The plaintiff appeals from the judgment of the trial court, rendered after a jury trial, setting aside the jury’s verdict in the plaintiffs favor in the amount of $167,877.07. Although the plaintiff has cast its claims on appeal in three parts-, our disposition of the first claim controls and subsumes the second and third claims. Because we agree with the trial court that there was no evidence from which the jury could reasonably have concluded that the defendant acted negligently, rather than intentionally, we affirm the judgment.

The plaintiffs revised complaint alleged that on August 11, 1983, the defendant “ignited combustible materials in multiple locations of the premises of Young Israel of West Hartford, thereby, causing a fire to occur at said premises.” It further alleged that the fire and its resultant damages were caused by the negligence of the defendant “in that he, in one or more of the following ways: a. Ignited a fire, which he knew or should have known, could spread and damage or destroy the Young Israel building and its contents; b. Failed to take action to contain or extinguish the fire; c. Failed to alert or notify anyone of the existence of the fire and the necessity to extinguish it; and d. Failed to warn anyone that a fire had been ignited.”

In support of these allegations, the jury had before it the following evidence, produced either by the plaintiff through exhibits and direct examination of its witnesses, or through the defendant’s cross-examination of the plaintiff’s witnesses including the defendant, who was called to the stand by the plaintiff. At 3:22 a.m. on August 11,1983, the West Hartford fire department was notified of a fire at the synagogue, and arrived at the scene at 3:33 a.m. At that time, the synagogue was engulfed in a major fire that had been burning for one hour. It took approximately twenty minutes to bring the fire under control, and approximately two hours to extinguish it completely.

Officer Joseph Glowacki of the West Hartford police department, whose duties included investigation of suspicious fires, testified that the fire was “incendiary,” meaning that “it was a fire that was not an act of God. It was a fire that was not accidental. It was a fire that was set by a person or persons.” He determined that there were four points of origin of the fire inside the building, and that no accelerant, or flammable liquid, had been used. Matteo Pascarelli, a deputy fire chief, testified that there were three points of origin of the fire, and that when he arrived and entered the building the principal area of fire was “in the holy ark area” to the right of the front door. He also testified that all the fires had been set by a person. William Wilson, another deputy fire chief, testified that there were four points of origin: (1) in the basement, where paper towels had been burned on a table; (2) on the staircase leading from the basement to the first floor, “up against the wall under a telephone”; (3) in the front foyer of the building, where a telephone book and a prayer shawl had been ignited; and (4) in the sanctuary, where the damage was heaviest. He testified that, at that point of origin, the fire “progressed up the drapes” covering the ark and spread to the area “around the drapes such as the paneling [and] the doors . . . .” That caused heat to be driven to the ceiling, where the “heat amassefd] at the highest point in the room” and then banked down, eventually causing a “flashover,” which occurs when the heat is so intense that material ignites spontaneously. Wilson also testified that it is easiest to fight a fire at its beginning, when the heat is less intense and when there is little damage, because the fire is on the point of origin. He testified further that it had taken five to ten minutes for the drapes to burn, and that damage to the contents of the synagogue had increased significantly when the flashover occurred, which he estimated happened between 3:12 and 3:17 a.m. Finally, he testified that the fire was incendiary, which he defined as “a deliberately set fire,” and not an accidental fire or a fire caused by “an act of God such as lightning.”

The defendant, who was seventeen years old at the time of the fire, came from a religious family. He lived in West Hartford with his parents, who were members of the synagogue. The plaintiff introduced into evidence the defendant’s December 13, 1983 statement to the West Hartford police in which he admitted setting the fires. In that statement, the defendant stated that, on the morning of the fire, he had entered the building through a boarded up window, and had made telephone calls to Dallas, Texas. He then began looking around and saw a book of paper matches. He stated further that, when he saw the matches, he had gotten “the idea to start a fire.” He “took some paper towels from a window and put them into a plastic garbage can which was by the telephone,” and put the pail near the front door. “At this time the papers in the pail were already burning,” he stated. He put a prayer shawl and telephone book into the burning pail. He then left the building by the front door, and “then decided to return to the building and start another fire.” He “entered the main room” and, “using the matches,” he “lit one of the curtains . . . located over the [ark].” He stated further that he “may have started another fire in the center of the room around a big wooden black [sic].” He “then went downstairs and tried to [light] a fire near the sink with some paper towels on a table.” Then he went upstairs, left by the front door, and went home to bed.

The defendant testified that he had not gone to the synagogue with a plan to set fires. He testified that when he set fire to the curtains covering the ark, he had not intended to burn the Torah scrolls or the other contents of the building. He also testified that when he burned the curtains, he had not been thinking about whether he wanted to burn the Torah scrolls or the other contents of the building. He testified further, however, that he had intended to burn those items, including the curtains, to which he had set fire in the building. He also testified that he had left the building because the fire was out of control and he was in danger, and that he had not told anyone about the fire or called the authorities because he wanted the fire to continue and did not want to be caught.

After the jury returned its verdict in favor of the plaintiff, the defendant timely moved to set the verdict aside. The court granted the motion and rendered judgment for the defendant. This appeal followed.

The plaintiff claims that, although there was conflicting evidence, the jury could reasonably have determined from the following evidence that the defendant’s conduct was negligent, rather than intentional. The defendant testified that he had not gone to the synagogue with the intent to start a fire. The plaintiff argues that the jury could have inferred from the defendant’s testimony that he had intended to start “a few, small fires in relatively confined areas, such as in a garbage can, and near a sink while talking on the telephone,” and that he had “set small fires in locations so as to avoid damage to the contents of Young Israel Synagogue, and the holy Torah scrolls.” The plaintiff argues further that the jury could have inferred from the defendant’s testimony that he had started the fires while talking on the telephone, “that due care required that he report them,” and that he did not do so because he “became afraid when the fires unexpectedly got out of control and presented a danger to him.” We are unpersuaded.

The function of the trial court in setting a verdict aside, and the role of this court in reviewing that action, are well settled. “The trial court possesses inherent power to set aside a jury verdict which, in the court’s opinion, is against the law or the evidence.” Palomba v. Gray, 208 Conn. 21, 23-24, 543 A.2d 1331 (1988). The trial court should not set a verdict aside where there was some evidence upon which the jury could reasonably have based its verdict, but should not refuse to set it aside “ ‘where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles, or as to justify the suspicion that [the jurors] or some of them were influenced by prejudice, corruption or partiality.’ ” Id., 24. Within these parameters, furthermore, the trial court may set a verdict aside “even if the evidence was conflicting and there was direct evidence in favor of the party who prevailed with the jury.” Id. Ultimately, “[t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . . .’’Id. Limiting that discretion, however, is the litigants’ “constitutional right to have issues of fact determined by a jury” where “ ‘there is room for a reasonable difference of opinion among fair-minded’ ” jurors. Id., 25.

This court’s inquiry focuses on “the action of the trial court in setting aside the verdict.” Id. We determine whether the trial court abused its broad discretion, “according great weight to the action of the trial court and indulging every reasonable presumption in favor of its correctness”; id., 24; because the trial court, unlike this court, has had the opportunity “to view the witnesses,” to gauge their credibility and the weight of their evidence, and to “detect those factors, if any, that could improperly have influenced the jury.” Id. In doing so, “we must examine the evidential basis of the verdict itself to determine whether the trial court abused its discretion.” Id. Applying this scope of review, we conclude that the trial court did not abuse its broad discretion in setting the verdict aside.

There is no real dispute in this appeal, nor was there any real dispute at the trial, about the course of the defendant’s conduct in setting the fires. The only dispute is whether, in engaging in that course of conduct, he acted negligently or intentionally. If there was evidence upon which the jury could reasonably have found that he acted negligently, as the plaintiff argues, the plaintiff must prevail. If, however, the evidence was such that, as the defendant argues and as the trial court concluded, the only reasonable conclusion the jury could have reached is that he acted not negligently but intentionally, as those terms are properly understood in our tort jurisprudence, the defendant must prevail. Fundamental principles of tort liability lead us to conclude that, on the evidence produced here, the only reasonable conclusion for a fact finder to have reached is that the defendant acted intentionally.

It is axiomatic, in the tort lexicon, that intentional conduct and negligent conduct, although differing only by a matter of degree; Mingachos v. CBS, Inc., 196 Conn. 91, 103, 491 A.2d 368 (1985); are separate and mutually exclusive. “The distinction between intentional and unintentional invasions draws a bright line of separation among shadings of almost infinitely varied human experiences.” W. Prosser & W. Keeton, Torts (5th Ed. 1984) p. 33. Although in a given case there may be doubt about whether one acted intentionally or negligently, the difference in meaning is clear. “As Holmes observed, even a dog knows the difference between being tripped over and being kicked.” Id.

In its most common usage, “intent” involves “(1). . . a state of mind (2) about consequences of an act (or omission) and not about the act itself, and (3) it extends not only to having in the mind a purpose (or desire) to bring about given consequences but also to having in mind a belief (or knowledge) that given consequences are substantially certain to result from the act.” (Emphasis in original.) Id., p. 34. Also, the intentional state of mind must exist when the act occurs. Id. Thus, intentional conduct “extends not only to those consequences which are desired, but also to whose which the actor believes are substantially certain to follow from what the actor does.” Id., p. 35. Furthermore, “[i]t is not essential that the precise injury which was done be the one intended.” Alteiri v. Colasso, 168 Conn. 329, 334, 362 A.2d 798 (1975). “Rather, it is an intent to bring about a result which will invade the interests of another in a way that the law forbids.” W. Prosser & W. Keeton, supra, p. 36. Our case law accords with these principles. See, e.g., Mingachos v. CBS, Inc., supra; Alteiri v. Colasso, supra.

Negligent conduct, however, “is a matter of risk.” W. Prosser & W. Keeton, supra, p. 169. It is defined as “conduct ‘which falls below the standard established by law for the protection of others against unreasonable risk of harm.’ ” Id., quoting 2 Restatement (Second), Torts § 282. “Negligence is conduct, and not a state of mind.” (Internal quotation marks omitted.) W. Prosser & W. Keeton, supra, p. 169. Prosser and Keeton aptly describe the relationship between intentional and negligent tortious conduct as follows: “In negligence, the actor does not desire to bring about the consequences which follow, nor does he know that they are substantially certain to occur, or believe that they will. There is merely the risk of such consequences, sufficiently great to lead a reasonable person in his position to anticipate them, and to guard against them .... As the probability of injury to another, apparent from the facts within the acting party’s knowledge, becomes greater, his conduct takes on more of the attributes of intent, until it approaches and finally becomes indistinguishable from that substantial certainty of harm that underlies intent.” Id., pp. 169-70. Our case law also accords with these principles. See, e.g., Polmatier v. Russ, 206 Conn. 229, 537 A.2d 468 (1988); Mingadlos v. CBS, Inc., supra; Alteiri v. Colasso, supra; Brown v. Branford, 12 Conn. App. 106, 529 A.2d 743 (1987).

It is true, of course, that intentional tortious conduct will ordinarily also involve one aspect of negligent conduct, namely, that it falls below the objective standard established by law for the protection of others against unreasonable risk of harm. That does not mean, however, as the plaintiff’s argument suggests, that the same conduct can reasonably be determined to have been both intentionally and negligently tortious. The distinguishing factor between the two is what the negligent actor does not have in mind: either the desire to bring about the consequences that follow or the substantial certainty that they will occur. If he acted without either that desire or that certainty, he was negligent; if he acted with either that desire or that certainty, he acted intentionally. Furthermore, if he acted with either that desire or certainty, a subsequent failure to warn his victim will not somehow transform his conduct from intentional to negligent conduct, because he is responsible for “the direct and natural consequence of the intended act.” Alteiri v. Colasso, supra, 334, citing 1 Restatement (Second), Torts § 13.

Application of these principles to the evidence in this case compels the conclusion that the defendant acted intentionally, and not merely negligently. Certain facts bear repeating. In the middle of the night the defendant surreptitiously broke into the synagogue. Upon seeing a book of matches, he formed the idea to start a fire. He then started a fire in a plastic pail with paper towels, to which he added a telephone book and a prayer shawl, and left the burning pail near the front door. Although he then left the building, he returned, entered the sanctuary, and set fire to the curtains covering the ark. He then set at least one and probably two more fires in the building. All of these fires were incendiary, that is, deliberately set. He intended to burn all of the items, including the curtains in the sanctuary, that he set fire to in the building. Thereafter, he left the building because the fire was out of control and he was in danger. He did not report the fire because he did not want to get caught.

The only rational conclusion a fact finder could have reached is that the defendant acted either with the desire to cause harm by fire to the building or its contents, or with the substantial certainty that such harm would occur. The only rational conclusion is that the defendant intended, in the sense that we have discussed, to bring about a result, namely, some burning of that building or its contents, that invaded the interests of the synagogue in a way that the law forbids. W. Prosser & W. Keeton, supra, p. 36. “It is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom.” State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985); D’Arcy v. Shugrue, 5 Conn. App. 12, 21, 496 A.2d 967, cert. denied, 197 Conn. 817, 500 A.2d 1336 (1985). It would defy common sense to think that the defendant neither desired nor knew with substantial certainty that, when he set the fires, particularly the fire in the sanctuary, either the building or its contents or both would be damaged by fire.

It is of no moment that he may not have specifically intended the Torah scrolls to burn, or that he may not have specifically intended that the building be substantially damaged by fire. The degree of the intentional invasion of the synagogue’s interest is not determinative. It is not necessary that the precise injury that occurred be the one intended, so long as the injury was the direct and natural consequence of the intended act. Polmatier v. Russ, supra, 240; Alteiri v. Colasso, supra, 334.

We are equally unpersuaded by the plaintiffs argument that the defendant, having set the fires, was negligent in not reporting them. It would be a curious rule of law, indeed, to convert an arsonist into a negligent actor by dint of his failure to report his arson to the fire department. Yet that is the substance of the plaintiff’s argument. Intentional conduct does not become negligent conduct by virtue of the defendant’s failure to take remedial steps to mitigate the injury. Rather, the defendant is responsible for the direct and natural consequences of his intended act. Polmatier v. Russ, supra, 240.

The judgment is affirmed.

In this opinion the other justices concurred.

       Also named as a plaintiff was the synagogue, Young Israel of West Hartford, which was insured by American National Fire Insurance Company pursuant to a fire insurance policy. We refer herein to American National Fire Insurance Company as the plaintiff, since it brought suit as a subrogee of the rights of the synagogue under the policy.

       Also named as defendants were John and Anita Sehuss, the parents of Barry Sehuss. The case was withdrawn, however, against them. We refer herein, therefore, to Barry Sehuss as the defendant.

       The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023.

       The plaintiff claims that the trial court improperly set the verdict aside because: (1) there was sufficient evidence of the defendant’s negligence to support the verdict; (2) there was sufficient evidence of causation to support the verdict; and (3) the court abused its discretion by imposing on the plaintiff the burden of proving the defendant’s state of mind in a negligence case. Included in the third claim is an unelaborated argument that the court denied the plaintiff due process of law under article first, § 10 of the Connecticut constitution by denying the plaintiff access to the defendant’s psychiatric records. We decline to consider this argument, however, because it is not adequately briefed. State v. Tatum, 219 Conn. 721, 742, 595 A.2d 322 (1991). A bare reference to the constitution is not sufficient to present such a claim.

       Telephone records disclosed twenty-three such calls, placed between 1:57 and 2:42 a.m.


author: Berdon, J.

text:
    Aetna Casualty and Surety Company v. CNA Insurance Company et al.
    (14376)
    Peters, C. J., Shea, Callahan, Covello and Berdon, Js.

      Argued December 12, 1991
    decision released April 28, 1992

      JonS. Berk, with whom, on the brief, was Andrew J. Hern, for the appellant (named defendant).

      Herbert J. Shepardson, with whom, on the brief, were LorindaS. Coon and JohnM. Watkins, for the appellee (plaintiff).

      Kerin M. Woods, for the appellee (defendant Marianne O’Neill).
   Berdon, J.

The sole issue in this appeal concerns the validity of “other insurance” clauses that are used to determine the order of the obligation to provide coverage between insurers furnishing underinsured motorist coverage to a claimant. The defendant insurer, CNA Insurance Company (CNA), appealed from the trial court’s decision invalidating the “other insurance” clauses in policies issued by CNA and by the plaintiff insurer, Aetna Casualty and Surety Company (Aetna), and treating both CNA and Aetna as the primary insurers of the claimant, Marianne O’Neill. We transferred the appeal to this court from the Appellate Court in accordance with Practice Book § 4023, and now reverse the trial court’s judgment.

The following facts are not in dispute. On April 6, 1986, the claimant was seriously injured when the vehicle she was driving collided with a vehicle owned and operated by Raymond Petronis. The claimant’s vehicle was owned by her father, Eugene O’Neill, and insured by Aetna. At the time of the incident, the claimant was residing with her sister and brother-in-law, Catherine and Joseph Jazwicz. The Jazwiczes were the named insureds under the CNA automobile policy.

Petronis had liability insurance on his vehicle through American Universal, which paid the policy limit of $100,000 to the claimant. The claimant then brought claims under the underinsured motorist provisions policy issued by Aetna, the insurer of the claimant as the operator of the covered vehicle, and the policy issued by CNA, the insurer of the claimant as a resident relative of the Jazwiczes. Both the Aetna and the CNA policies contained identical “other insurance” clauses that provided: “If there is other applicable similar insurance, we will not pay for any damages which would duplicate any payment made for damages under such similar insurance. However, any insurance we provide with respect to a vehicle you do not own, to which other similar insurance is applicable, shall be excess over such other applicable insurance.”

Pursuant to the terms of the policies, the claims went to arbitration and the parties stipulated to the following: (1) the claimant was covered under both the Aetna and CNA policies; (2) at the time of the accident, the Aetna policy provided a total of $300,000 of underinsured motorist coverage, and the CNA policy provided underinsured motorist coverage for two vehicles in the amount of $300,000 each, for a total of $600,000 of underinsured motorist coverage; and (3) there was a credit of $100,000 from the tortfeasor’s payment. The arbitration panel found that the claimant had suffered damages in the amount of $400,000 and awarded her $300,000 pursuant to the underinsured motorist coverage. The arbitration panel concluded that the insurer providing coverage on the vehicle involved in the accident was primary, and that the insurer providing coverage as a result of the claimant being a resident relative of the named insureds’ household was excess. The panel, therefore, concluded that Aetna’s coverage should be exhausted before CNA would be obligated to pay underinsured motorist benefits. After giving Aetna the full $100,000 credit for the payment by the tortfeasor, the panel ordered Aetna to pay the first $200,000 of underinsured motorist coverage and CNA to pay the additional $100,000.

Aetna filed a motion in the Superior Court to vacate the award and the claimant filed a motion to confirm the award, which were consolidated and heard jointly by the trial court. The court concluded that because the “other insurance” clauses in both the Aetna and the CNA policies were in conflict, it would treat both insurers as primary and prorate the amount of the benefits between them according to their limits of liability. The court then ordered Aetna to pay $85,714.28 to the claimant and CNA to pay the claimant $214,285.72.

On appeal, CNA claims that the court erred in not finding that the Aetna policy was primary and that the CNA policy was excess in providing underinsured motorist benefits to the claimant. The issue of the validity of “other insurance” clauses for the purpose of determining the priority of payment between insurers is one of first impression in this court. We conclude that “other insurance” clauses are valid for the purpose of establishing the order of coverage between insurers, as long as their enforcement does not compromise coverage for the insured. A careful reading of the Aetna and the CNA policies in their entirety reconciles any possible conflict and establishes that the Aetna policy provides primary coverage while the CNA policy provides excess coverage to the claimant. Accordingly, we reverse the judgment of the trial court.

At the outset, we note that the original reason for “other insurance” clauses was to prevent overinsurance and double recovery under fire and property insurance policies. Since, however, “there is less temptation to deliberately and fraudulently overinsure against automobile liability, these other insurance clauses function solely to reduce or eliminate the insurer’s loss in the event of concurrent coverage of the same risk.” (Internal quotation marks omitted.) Werley v. United Services Automobile Assn., 498 P.2d 112, 117 (Alaska 1972).

Aetna contends that in Pecker v. Aetna Casualty & Surety Co., 171 Conn. 443, 453, 370 A.2d 1006 (1976), this court invalidated “other insurance” clauses in uninsured motorist provisions for all purposes. Aetna has misinterpreted our holding. In Pecker, the issue before us was whether such a clause was enforceable to prevent the insured from stacking multiple uninsured motorist coverages in cases in which the claimant had not been wholly indemnified for his damages. We held that when a claimant’s damages exceed the uninsured motorist coverage available against any one policy, resulting in only partial indemnification for the claimant, “other insurance” clauses are invalid to prohibit the claimant from stacking coverages. The cornerstone of our holding in Pecker was the public policy behind the enactment of the uninsured motorist statutes and regulations affording an insured full indemnification for the injuries suffered. Id., 448-51; see also Allstate Ins. Co. v. Ferrante, 201 Conn. 478, 482, 518 A.2d 373 (1986) (“we have repeatedly held that General Statutes § 38-175c permits an injured claimant to ‘stack’ coverages”).

The present appeal presents an entirely different scenario. Here, the “other insurance” clauses apportion underinsured motorist liability between insurers. Public policy is not violated when “other insurance” clauses are used for the purpose of establishing the order of payment between insurers. When the insured is afforded full indemnification for a loss, there is no public policy issue controlling how insurers divide coverage among themselves. See Farmers Ins. Co. v. Prudential Property & Casualty Ins. Co., 10 Kan. App. 93, 97-98, 692 P.2d 393 (1984); P. Morello, “The Problem of Multiple Uninsured Motorist Coverages: Who Pays?” 62 Conn. B.J. 358, 364 (1988).

We conclude, therefore, that if a careful reading of the language of the policies in their entirety reconciles any conflict or ambiguity that may arise when identical or similar “other insurance” clauses exist, and if the enforcement of the clauses would not produce adverse consequences for the insured, then the clauses should be enforced as written. See R. Keeton, Insurance Law (1971) § 3.11 (b), p. 173; see also Farmers Ins. Co. v. Prudential Property & Casualty Ins. Co., supra, 396 (“ ‘ “Other insurance” excess coverage clauses do not seek to dilute, condition or limit statutorily mandated coverage. Rather, they seek only to establish priority as to which policy should be exhausted first in satisfying the liability. ... We see no public policy question in how insurance companies divide among themselves the loss occasioned by their communal insured.’ ”); State Farm Mutual Automobile Ins. Co. v. United Services Automobile Assn., 211 Va. 133,137-38,176 S.E.2d 327 (1970) (“We see nothing in the excess coverage clause involved herein which adds to or restricts the uninsured motorist statute. . . . The excess coverage clause merely provides an orderly process for determining the distribution of liability among several insurance carriers.”).

We begin our review of the “other insurance” provisions in the Aetna and CNA policies by noting that “[t]he rule in Connecticut is that an insurance policy, like any other contract, must be given a reasonable interpretation and the words used are to be given their common, ordinary and customary meaning. Gottesman v. Aetna Ins. Co., 177 Conn. 631, 634, 418 A.2d 944 (1979); Lyon v. Aetna Casualty & Surety Co., 140 Conn. 304, 307, 99 A.2d 141 (1953).” Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 309, 524 A.2d 641 (1987). The general rules of contract construction, therefore, apply when construing the terms of an insurance policy. “Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.” Barnard v. Barnard, 214 Conn. 99, 110, 570 A.2d 690 (1990).

In construing the language of the policies, we start with the stipulation that the claimant was covered under both policies. Indeed, the definitions within the provisions make this clear. Both policies define a “covered person” in their uninsured motorist provisions as, inter alia: “1. You or any family member. 2. Any other person occupying your covered auto.” Therefore, Aetna provided underinsured motorist coverage to the claimant as a “covered person” because she was occupying a vehicle owned by the named insured, Eugene O’Neill, and CNA provided underinsured motorist coverage to the claimant because she was a family member who was residing in the household of the named insureds, Catherine and Joseph Jazwicz.

The essential language to be construed in the policies is “[a]ny insurance we provide with respect to a vehicle you do not own, to which other similar insurance is applicable, shall be excess over such other applicable insurance.” (Emphasis added.) It is clear that both Aetna and CNA contemplated in their respective “other insurance” clauses that the policy issued by each would be excess in situations where the covered person was injured in a vehicle “you” do not own. In order to determine to whom the word “you” in each clause refers, we consult the definition of that word within the policies. Both policies provide: “Throughout this policy, ‘you’ and ‘your’ refer to: 1. The ‘named insured’ shown in the Declarations; and 2. The spouse if a resident of the same household.”

Accordingly, the Aetna policy, by its own terms, does not envision being excess in this situation because the claimant was injured while occupying a vehicle owned by Eugene O’Neill, the named insured in the Aetna policy. Therefore, the Aetna policy is primary and its “other insurance” clause does not apply. Conversely, the CNA policy is excess because the claimant was not injured while an occupant in a vehicle owned by the Jazwiczes, the named insureds in the CNA policy. The only reason CNA is providing underinsured motorist coverage is because the claimant is a resident relative of the named insureds, and thus, a covered person under the CNA policy. We find no conflict between the policies because only one insurer, Aetna, could be primary. The policies themselves, therefore, dictate that we hold that the Aetna underinsured motorist coverage be primary and that the CNA underinsured motorist coverage be excess.

The judgment is reversed and the case is remanded with direction to reinstate the award of the arbitration panel and to render judgment accordingly.

In this opinion the other justices concurred.

       We have long held that if “ ‘a claim is made against an insured’s uninsured motorist coverage after it is determined that the at-fault party is underinsured, the [statutes and] regulations which apply to uninsured motorist coverage must equally apply to underinsured motorist coverage.’ ” General Accident Ins. Co. v. Wheeler, 221 Conn. 206, 210-11, 603 A.2d 385 (1992), quoting Nationwide Ins. Co. v. Gode, 187 Conn. 386, 399-400, 446 A.2d 1059 (1982).

       Although the trial court does not explain its mathematical calculations, we assume that it gave to each insurer a full credit of $100,000, which represented the payment from the tortfeasor. The credit reduced Aetna’s total underinsured motorist coverage to $200,000 and CNA’s total underinsured motorist coverage to $500,000, for a total coverage of $700,000 available to the claimant. The court then prorated the available coverage between the insurers and ordered Aetna to pay two-sevenths of the loss, or $85,714.28, and CNA to pay five-sevenths of the loss, or $214,285.72.

       There are three types of “other insurance” clauses for underinsured motorist coverage: (1) excess; (2) pro rata; and (3) escape. An “excess insurance” clause, such as the one employed by the parties in the present appeal, provides that, if there is other valid insurance covering the loss, the excess policy applies only if the claimant’s loss exceeds the policy limits of the primary insurer. 8A J. & J. Appleman, Insurance Law and Practice (1981) § 4906, pp. 347-49. A “pro rata” other insurance clause provides that if there is other valid coverage, the insurer is liable only for its pro rata share of the loss, that is, the proportion that its policy limits bears to the total applicable policy limits. 8A J. & J. Appleman, supra, § 4906, pp. 345-46. An “escape” other insurance clause provides that the existence of other uninsured motorist coverage eliminates the insurer’s liability to the claimant of that other insurance. 8A J. & J. Appleman, supra, § 4906, pp. 349-52.

       Moreover, in Pecker v. Aetna Casualty & Surety Co., 171 Conn. 443, 452, 370 A.2d 1006 (1976), we stated: “By our holding that ‘other insuranee’ clauses included in uninsured motorist coverage provisions are invalid, we do not intend to abrogate the rule that an insured may not recover double payment of damages under overlapping insurance coverage.”

       The CNA policy defines “family member” as, inter alia, “a person related to you by blood, marriage or adoption who is a resident of your household." (Emphasis added.)

       We base our holding today upon the plain language of the policies; Barnard v. Barnard, 214 Conn. 99, 110, 570 A.2d 690 (1990); requiring the insurer of the vehicle to provide the primary coverage to the claimant, and not on the basis of any fictitious doctrine that insurance coverage “follows the vehicle.” See Allstate Ins. Co. v. Ferrante, 201 Conn. 478, 486, 518 A.2d 373 (1986); Harvey v. Travelers Indemnity Co., 188 Conn. 245, 248, 449 A.2d 157 (1982).