author: Arthur H. Healey, J.

text:
    State of Connecticut v. Robert M. Littlejohn
    (12159)
    (12304)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.

      Argued February 4
    decision released May 13, 1986

      Ralph E. Urban, certified legal intern, with whom was Michael R. Sheldon, for the appellant (defendant).

      Susann E. Gill, deputy assistant state’s attorney, with whom, on the brief, were Donald B. Caldwell, state’s attorney, and Abbott B. Schwebel and Carl Schuman, assistant state’s attorneys, for the appellee (state).
   Arthur H. Healey, J.

The principal issue on this appeal is whether the trial court could properly have accepted the defendant’s plea to a substitute information charging a crime on which the statute of limitations had run. On December 7, 1982, the defendant, Robert Littlejohn, was indicted by a grand jury for the crime of murder in violation of General Statutes § 53a-54a. On May 19, 1983, after a trial to the jury, the defendant was found guilty of murder and sentenced on June 21,1983, to eighteen years to life. This appeal followed.

Certain additional background circumstances are properly set out at this point. The defendant was arrested on November 9,1982, in connection with the April 8,1977 death of Clark Burtt and was thereafter indicted by the grand jury. On April 27,1983, the trial court, Kelly, J., denied his motion to dismiss which alleged prejudicial pretrial delay. Diming jury selection and as a result of negotiations between the state and defense counsel, the state filed a substitute information on May 10,1983, charging the defendant with the crime of manslaughter in the second degree with a firearm in violation of General Statutes § 53a-56a. Prior to filing the substitute information, the state informed the court, Byrne, J., on May 10,1983, that it was being filed only after discussions with defense counsel which had extended over the prior week and that the state “has an obligation to conform to what we had discussed with counsel concerning disposition of this case.” At the same time, the state indicated that the court “may feel compelled to bring forth the problem of waiver . . . concerning the statute of limitations, and as a result of that, to my understanding that counsel [for the defendant] will be filing a waiver to that statute of limitations defense.” At that point, the defendant’s counsel offered to show the waiver form to the court which he represented the defendant would sign in open court. Later in this colloquy defense counsel said that the defendant had signed the waiver he presented in open court. The court said that counsel “may do as you want with those documents, but as the Court has informed counsel that unless shown to the contrary, the only charge applicable here is murder, because any—there won’t be any lesser included offenses because . . . the statute of limitations [has] run on any lesser included offenses for manslaughter in the first degree through negligent homicide. So, obviously, the court would not charge on them. ...” Observing that it had been shown nothing to alter its position, the court said that it would not accept “a plea based on the voluntary waiver by a defendant of the statute of limitations in absolute defense.”

Later in the same colloquy, after arguing the waivability of the statute of limitations, the defendant’s counsel tried to ascertain what had happened procedurally with the information “which the state has filed.” The court indicated that it was “[j]ust in the file, because the Court is not going to accept the plea . . . not on the charge where the statute of hmitations is run.” The defendant excepted to the ruling and jury selection continued.

On May 11,1983, the defendant’s counsel asked for a “clarification of yesterday’s ruling regarding the substituted information filed by the [state].” He explicitly asked whether the court’s position was that, because the statute of limitations had run on any lesser included offenses, the court would not entertain or accept a plea to the substitute information. After some discussion of State v. Paradise, 189 Conn. 346, 456 A.2d 305 (1983), and a reiteration that the statute of limitations had run on all the lesser included offenses, the court adhered to its earlier ruling saying that it would not accept a guilty plea because the defendant could not be found guilty of the charge in the substitute information.

On May 12, 1983, the defendant’s counsel informed the court that he had filed an interlocutory appeal from the court’s decision not to permit a plea to the substitute information and he moved for a stay under Practice Book § 3068 pending a decision by this court on that interlocutory appeal. The court asked the basis for this interlocutory appeal, opining correctly, inter alia, that it was not taken from a final judgment. Counsel, agreeing that the court had the prerogative to refuse to accept a plea and not to agree with the state’s recommendation on the substitute information, maintained that the court had the “requirement” and a “responsibility” to arraign the defendant on the substitute information and not cut the process off prior to even permitting a plea. Although he also argued that to do so forced the defendant to trial, thus removing his ability to perfect an arrangement that both he and the state felt was to their mutual advantage, the court denied his request. After the court stated that it would not permit the defendant to plead to the substitute information, the defendant’s counsel inquired: “Well, on what basis would Your Honor not accept the plea, on the basis of the Statute of Limitations?” The court replied: “That’s one, and I—and many other bases that the Court has the prerogative in not accepting a plea. And you know that.”

On appeal from his conviction, the defendant claims that the trial court erred in refusing to entertain the defendant’s plea of guilty to the substitute information charging manslaughter in the second degree with a firearm in violation of General Statutes § 53a-56a because of its conclusion that the defendant could not waive the defense of the statute of limitations to that crime. The defendant additionally claims that the trial court erred in admitting certain testimony of the defendant’s former wife and in denying his motion to dismiss which was based on prejudicial prearrest delays.

The defendant’s claims on the issue of the statute of limitations, although multifaceted, are essentially that the language, structure and purpose of the statute of limitations, i.e., General Statutes § 54-193, support its waivability as does judicial construction and interpretation of limitations statutes. Nearly all jurisdictions presented with this question have held that criminal defendants may waive the statute when it is in their best interest to do so. The defendant claims, therefore, that the trial court’s refusal to honor the valid waiver proffered was erroneous as was its consequent rejection of his negotiated plea of guilty. Because of the erroneous action of the trial court, the defendant claims that his conviction of murder should be vacated and the case remanded with instructions that a guilty plea be entered pursuant to his plea agreement with the state.

The state concedes, in its brief, that the trial court erred insofar as it refused to accept the defendant’s waiver of the statute of limitations but argues that that concession does not mandate the reversal of his murder conviction with direction to accept the proffered plea to the substitute information. At most, it argues, a remand for further articulation and further proceedings is necessary. It asserts generally that the state of the record requires such a remand pointing out, inter alia, that neither the recommendation nor the bargain that the state is claimed to have made is on the record. In addition, it notes that the court’s statements do not “suggest,” contrary to the defendant’s claim, that the court’s refusal to take a plea was solely because of the statute of limitations. Maintaining that the “most likely interpretation” of the record is that the trial court “rejected the plea ‘regardless of the statute of limitations’ ” and given the uncontested right of the court to reject a plea bargain, the state concludes that the refusal to permit a waiver of the statute of limitations had “no material effect on the outcome of the case.” Therefore, the state claims that because the defendant did not seek to clarify the record, a “proper reading of the record” demonstrates no prejudice to the defendant and, accordingly, the judgment of conviction should stand.

Alternatively, the state argues for a remand for further articulation of the “precise basis of the trial court’s rejection of the defendant’s plea” without immediately vacating the judgment of conviction. If, the state claims, upon articulation the trial court specifies that its disallowance of the defendant’s plea was based at least in part on its disagreement with the terms of the plea bargain, then this court should find no error on this issue. If, however, the trial court makes clear that its ruling was based solely on the nonwaivability of the statute, further proceedings must take place on remand to determine if harmful error took place. The principal issue in such proceedings, the state contends, is whether the trial court would have accepted the plea “but for” the bar of the statute of limitations. Evidence would be required concerning the precise terms of the arranged plea agreement. If the original trial judge “specifies” that he would have accepted this plea agreement “but for” the bar of the statute, then the state agrees with the defendant that this court should vacate his murder conviction and order the acceptance of the original plea proffered by the defendant. On the other hand, the state argues that if the original trial judge “specifies” that even if he had reached the plea agreement, he would not have accepted it, then this court should not reverse the judgment of conviction unless the defendant can show that the trial judge’s “refusal to accept the plea represented a manifest abuse of discretion.” Even if the remand discloses that the original decision was based solely on the statute of limitations issue and, additionally, if the trial judge “specifies” that he would not have accepted the original plea bargain, the defendant, according to the state, should not be given the opportunity to enter an “unconditional, non-plea bargained plea of guilty” to manslaughter in the second degree with a firearm. To do so would put him, the state argues, in a better position than he would have been but for the claimed erroneous ruling on the statute of limitations.

We start our analysis by recognizing that the state agrees that the defendant’s written waiver of the statute of limitations, made voluntarily and intelligently and with the assistance of counsel, was a valid waiver of the statute. This incorporates the defendant’s claim that the statute is waivable and not jurisdictional. While these agreements are helpful, they do not relieve this court of its obligation to determine whether the protection afforded a criminal defendant by the statute of limitations set out in General Statutes § 54-193 may be validly waived. We conclude that it may be waived.

Many courts have addressed the question of the waivability of the statute of limitations as dependent upon whether the statute is to be regarded as jurisdictional or as an affirmative defense. See United States v. Wild, 551 F.2d 418, 424 (D.C. Cir.), cert. denied, 431 U.S. 916, 97 S. Ct. 2178, 53 L. Ed. 2d 226 (1977); Padie v. State, 594 P.2d 50 (Alaska 1979); Tucker v. State, 417 So. 2d 1006 (Fla. App. 1982). There are courts which have treated the statute as jurisdictional and thus nonwaivable. See, e.g., Waters v. United States, 328 F.2d 739 (10th Cir. 1964); Benes v. United States, 276 F.2d 99 (6th Cir. 1960); State v. Fogel, 16 Ariz. App. 246, 492 P.2d 742 (1972); Duncan v. State, 282 Md. 385, 384 A.2d 456 (1978); State v. Stillwell, 175 N. J. Super. 244, 418 A.2d 267 (1980); Cleveland v. Hirsch, 26 Ohio App. 2d 6, 268 N.E.2d 600 (1971); Cunningham v. District Court of Tulsa County, 432 P.2d 992 (Okla. Crim. App. 1967); John v. State, 89 Wis. 2d 214, 278 N.W.2d 235 (1979), aff’d, 96 Wis. 2d 183, 291 N.W.2d 502 (1980). Some courts treat the statute as an affirmative defense, which must be asserted at or before trial, and is thus waivable. See, e.g., United States v. Walsh, 700 F.2d 846 (2d Cir.), cert. denied, 464 U.S. 825, 104 S. Ct. 96, 78 L. Ed. 2d 102 (1983); United States v. Williams, 684 F.2d 296 (4th Cir. 1982), cert. denied, 459 U.S. 1110, 103 S. Ct. 739, 74 L. Ed. 2d 961 (1983); United States v. Levine, 658 F.2d 113 (3d Cir. 1981); United States v. Akmakjian, 647 F.2d 12 (9th Cir.), cert. denied, 454 U.S. 964, 102 S. Ct. 505, 70 L. Ed. 2d 380 (1981); United States v. Doyle, 348 F.2d 715 (2d Cir.), cert. denied, 382 U.S. 843, 86 S. Ct. 89, 15 L. Ed. 2d 84 (1965); Padie v. State, supra; People v. Williams, 79 Ill. App. 3d 806, 398 N.E.2d 1013 (1979); People v. O’Neil, 107 Misc. 2d 340, 433 N.Y.S.2d 977 (1980); Commonwealth ex rel. Patterson v. Ashe, 154 Pa. Super. 397, 36 A.2d 249 (1944); see case comment, “Waiver of the Statute of Limitations in Criminal Prosecutions: United States v. Wild, ” 90 Harv. L. Rev. 1550 (1977); comment, “The Statute of Limitations in a Criminal Case: Can it be Waived?” 18 Wm. & Mary L. Rev. 823 (1977). Years ago, the United States Supreme Court indicated that “[t]he statute of limitations is a defense and must be asserted on the trial by the defendant in criminal cases . . . .” Biddinger v. Commissioner of Police, 245 U.S. 128, 135, 38 S. Ct. 41, 62 L. Ed. 193 (1917). Courts have cited Biddinger for the proposition that the statute is an affirmative defense waived unless asserted at trial. See, e.g., United States v. Minor, 756 F.2d 731, 737 (9th Cir. 1985); United States v. Walsh, supra, 855-56.

We think that the more acceptable and better reasoned approach is not to treat the statute of limitations as jurisdictional and hence nonwaivable but as an affirmative defense and hence waivable. In doing so, we incline to the position that, although the protection is given to a criminal defendant by a statute, it is in the nature of a “substantive right,” extending, where timely asserted, immunity from prosecution. See United States v. Gulf Oil Corporation, 408 F. Sup. 450, 455 (W.D. Pa. 1975); United States v. Haramic, 125 F. Sup. 128 (W.D. Pa. 1954); 22 C.J.S., Criminal Law § 223, p. 574.

A leap of logic is not required to maintain that if an accused can waive constitutional rights, he certainly can waive one conferred by the statute of limitations; United States v. Wild, supra, 424 (knowing and intelligent waiver of statute of limitations is valid); nor is it in derogation of the policy behind the statute to permit him to do so. See Toussie v. United States, 397 U.S. 112, 114-15, 90 S. Ct. 858, 25 L. Ed. 2d 156 (1970).

Analogy to civil statutes of limitation, which go to the remedy only, is fragile because, by contrast, criminal statutes of limitations create a bar to the prosecution of the defendant. The purposes of the latter are more comprehensive because not only are the interests of the defendant involved, but also those of society and the criminal justice system, to which legislative and judicial concerns are geared. See comment, “The Statute of Limitations In a Criminal Case: Can It Be Waived?” supra, 837. Criminal statutes of limitation fairly “represent legislative assessments of relative interests of the State and the defendant in administering and receiving justice . . . . ” United States v. Marion, 404 U.S. 307, 322, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971). Any waiver of the statute must, of course, be voluntary and intelligent and a waiver presents a question of fact in each case. United States v. Wild, supra; United States v. Levine, supra, 120 n.8; see Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938).

We now turn to the refusal of the trial court to put the defendant to plea upon the substitute information. This opportunity should have been given the defendant because he did have the right to waive the statute of limitations. The defendant did not claim at trial, as he admits, that he had the right to have the trial court accept his plea to the substitute information or the right to have that court, if it accepted his plea, accept the negotiated plea bargain. He did, however, have the right to plead to the substitute information.

The state could file the substitute information in the circumstances of this case linked as it was with the defendant’s concededly valid waiver of the statute of limitations. The state did not remonstrate at trial that it, as well as the defendant, would be mutually advantaged by a plea to the substitute information and the accomplishment of the plea bargain. There is nothing in this record, however, that rebuts the accepted presumption that a state’s attorney will do his duty. State v. Lenihan, 151 Conn. 552, 555, 200 A.2d 476 (1964); State v. Zimnaruk, 128 Conn. 124, 127, 20 A.2d 613 (1941). Had the trial court recognized that the statute of limitations was waivable, then the filing of the substitute information would have acted to supersede the grand jury indictment. See generally State v. DiBella, 157 Conn. 330, 336, 254 A.2d 477 (1968); 42 C.J.S., Indictments and Informations § 78. It is fair to say that the state did not wish to institute the dismissal of the grand jury indictment prior to a reasoned indication from the trial court that it might be amenable to a guilty plea on the substitute information. This appeared practical, given the express views of the trial court, even though our law is clear that “the state, in the exercise of its prosecutorial function, has considerable latitude as to how and in what manner it shall proceed against an accused”; State v. Zeko, 176 Conn. 421, 423, 407 A.2d 1022 (1979); State v. Villafane, 171 Conn. 644, 664, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977); State v. Townsend, 167 Conn. 539, 554, 356 A.3d 125, cert. denied, 423 U.S. 846, 96 S. Ct. 84, 46 L. Ed. 2d 67 (1975); “in any particular situation.” State v. Chetcuti, 173 Conn. 165, 168, 377 A.2d 263 (1977); see State v. Nardini, 187 Conn. 109, 113-15, 445 A.2d 304 (1982) (powers and duties of the office of state’s attorney reviewed). Such latitude, including the reasoned initiation, prosecution and disposition of cases by the office of the state’s attorney, is cognizable under both common law and statute. See, e.g., United States v. San Jacinto Tin Co., 125 U.S. 273, 279, 8 S. Ct. 850, 31 L. Ed. 747 (1888); State v. Nardini, supra. So long as the prosecutor acts within the jurisdiction of his office, as here, it is not appropriate for a court to set any policy for the performance of his prosecutorial function. See State v. McKenna, 188 Conn. 671, 680, 453 A.2d 435 (1982); State v. Haskins, 188 Conn. 432, 474, 450 A.2d 828 (1982). The trial court, therefore, should have permitted the defendant to plead to the substitute information.

It remains, on this issue, to articulate the remand which we have determined is required. In remanding, we regard the defendant’s waiver of the statute of limitations to the crime charged in the substitute information, i.e., General Statutes § 53a-56a (“manslaughter in the second degree with a firearm”) as ongoing and the plea bargain negotiated in 1983, during jury selection, to the substitute information as extant. The plea bargain should have been placed explicitly on the record back in 1983 but the circumstances set out earlier disclose why the process never progressed to that point.

This case is remanded to the trial court, Byrne, J., with direction to permit the defendant to plead guilty to the substitute information upon finding that the plea is knowingly and voluntarily made and has a factual basis under such cases as Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), and State v. Lasher, 190 Conn. 259, 265, 460 A.2d 970 (1983). In the event that the guilty plea is accepted and the trial court can reasonably determine that it will sentence the defendant in accordance with the negotiated plea bargain, then immediately prior to such sentencing it is ordered that the 1983 conviction of murder be vacated and set aside. We are aware, of course, that there is no absolute right to have a guilty plea accepted and that a trial court may reject a plea in the exercise of its sound discretion. See, e.g., Lynch v. Overholser, 369 U.S. 705, 719, 82 S. Ct. 1063, 8 L. Ed. 2d 211 (1962). In addition, when the state and the defendant have agreed on a proposed disposition, the trial court must identify on the record good reasons if it does not follow that course. Hockaday v. United States, 359 A.2d 146, 148 (D.C. App. 1976), and cases cited therein. When a guilty plea is induced by promises arising out of a plea bargaining agreement, fairness requires that such promises be fulfilled by the state. See, e.g., Santobello v. New York, 404 U.S. 257, 261, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971). The same concept of fairness ordinarily impels the court, in its discretion, either to accord specific performance of the agreement or to permit the opportunity to withdraw the guilty plea. In this case, we also order that if the trial court accepts the guilty plea but later rejects the sentencing recommendation portion of the plea bargain then, in that event, assuming the defendant does not seek to withdraw his plea, we order that the 1983 conviction of murder be set aside and that the court nevertheless sentence the defendant under the substitute information. If the plea is withdrawn, of course, there would be no reason to set aside the judgment because the defendant would not have been prejudiced by the refusal of the court to permit him to plead to the substitute information.

We will discuss the defendant’s two remaining claims of error which must be resolved in the event that the defendant either elects not to plead guilty to the substitute information or elects to withdraw his plea of guilty to the substitute information after that plea has been accepted by the trial court but the sentencing recommendation portion of the plea bargain has not been accepted by that court. The defendant first claims that the trial court erred in denying his pretrial motion to dismiss the murder charge in April, 1983, which was based on alleged prejudicial prearrest delay. This denial, he claims, denied him his due process rights. We do not agree with the defendant.

At the trial in 1983, the defendant, who was then twenty-three years old, testified in his own defense saying that he did not “recall anything at all” about Good Friday, April 8, 1977, the day of the Burtt homicide despite his efforts to do so. He argues that he has met his burden of showing prejudice because of the delay as he was unable to recall the events of that day “so as to perhaps be able to come forward with alibi witnesses.” The state maintains that he did not demonstrate the prejudice required to prevail and that the claim is based on speculation.

“The role of due process protections with respect to pre-accusation delay has been characterized as a ‘limited’ one. United States v. Lovasco, 431 U.S. 783, 789, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977).” State v. Morrill, 197 Conn. 507, 521, 498 A.2d 76 (1985). In Lovasco, the United States Supreme Court said that it had “to determine only whether the action complained of . . . violates those ‘fundamental conceptions of justice which lie at the base of our civil and political institutions’ . . . and which define ‘the community’s sense of fair play and decency . . . .’ ” United States v. Lovasco, supra, 790. While ordinarily the statute of limitations is the only protection afforded a defendant against the institution of stale criminal charges; United States v. Marion, supra; it is not significant on this claim of error because it attacks delay in a charge of murder on which there is no statute of limitations. The due process clause does, however, “[become] implicated where substantial prejudice from such delay has resulted and the delay was for the purpose of gaining a tactical advantage over an accused. [United States v. Marion, supra].State v. Carrione, 188 Conn. 681, 693-94, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 103 S. Ct. 1775, 76 L. Ed. 2d 347 (1983). We have also said that a defendant, to demonstrate a denial of due process, “must show that actual significant prejudice to him has resulted.” Parham v. Warden, 172 Conn. 126, 134, 374 A.2d 137 (1976).

Only recently have we reiterated in Morrill that “[i]n order to establish a due process violation because of pre-accusation delay, the defendant must show both that actual substantial prejudice resulted from the delay and that the reasons for the delay were wholly unjustifiable, as where the state seeks to gain a tactical advantage over the defendant. State v. Carrione, [supra]; see also Stoner v. Graddick, 751 F.2d 1535, 1542 (11th Cir. 1985); United States v. Puett, 735 F.2d 1331, 1334 (11th Cir. 1984); United States v. DiMuro, 540 F.2d 503, 516 (1st Cir.), cert. denied, 429 U.S. 1038, 97 S. Ct. 733, 50 L. Ed. 2d 749 (1976). Marion makes clear that proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.’ United States v. Lovasco, supra, 790.” State v. Morrill, supra, 522.

On August 1, 1977, the Stafford Springs police department closed this case and ruled the death a “suicide.” In August, 1980, the Connecticut state police reopened their investigation as a result of which a grand jury indictment was presented. It would appear that the reopened investigation produced, inter alia, at least two written statements from James C. Waugh, Jr., a friend of the defendant, which later became full exhibits at the trial. One was dated January 2,1980, and in it Waugh stated that “about a month after Clark Burtt was found dead” the defendant said he had shot him. A more detailed statement from Waugh, dated October 11,1982, said that Waugh witnessed the defendant shoot Burtt. Both Waugh and Lynwood Pipkin testified at the trial that they saw the defendant shoot the victim. It is apparent that the reopened investigation took some time and it has not been shown that any delay in the arrest was to secure a tactical advantage. State v. Morrill, supra. Additionally, we cannot find in this record that the defendant has shown, as he must, “actual substantial prejudice.” State v. Morrill, supra.

We now take up the defendant’s claim that the trial court erred in permitting the defendant’s former wife to testify, over his objection, to his confidential communications to her. The defendant stated that he did not make any claim under General Statutes § 54-84a, the so-called “spousal privilege,” which he claimed went to competency and was “completely irrelevant to this issue.” Rather, he maintained that the anticipated evidence was within the confidential communications privilege of the marital relationship, which was distinct from the privilege in § 54-84a and that such confidentiality was presumed and that it survived the 1981 divorce of the defendant and his former wife, Lorna Hargrove. The state contended that § 54-84a controlled and that thereunder the decision to testify or not was vested in the witness’ wife.

After a voir dire of Hargrove, during which she said that the defendant told her about the Burtt killing, “maybe 25 or 30 [times], something like that. I’m not sure,” including once in front of his sister and once when Waugh was present, the trial court ruled that her testimony was admissible. At that time, she also said that she would get upset when he told her that he did it, and then only after she would ask him to tell her “on his word of honor” or “[his] love for [her]” would he say that he did not do it. When she testified in the presence of the jury, she said the matter came up “roughly around maybe 30 times, around” and that the story always ended with him “joking” or “kidding.” She also testified at that time that he said this once in front of his sister as well as once when Waugh was present. Again, she reiterated that it would upset her and when she would ask him to tell her the truth “on his love for [her],” he would tell her that he was only joking.

We have never explicitly held that confidential communications between husband and wife are privileged under the common law of this jurisdiction. Our early case of State v. Hoyt, 47 Conn. 518 (1880), strongly suggests that the Hoyt court felt that there was such a privilege. See State v. Hoyt, supra, 540. The later case of Spitz’s Appeal from Commissioners, 56 Conn. 184, 14 A. 776 (1887), clearly hypothesizes such a privilege. Such a privilege commends itself to judicial acceptance. We resolve this claim of error on the theory on which it was tried and upon which the trial court

decided it. See, e.g., Fuessenich v. DiNardo, 195 Conn. 144, 151, 487 A.2d 514 (1985). Although the confidential communications involved may have been admitted in error, any error was harmless. We hasten to point out that, in any event, those communications stated by the defendant to his then-wife in the presence of either his sister or Waugh could not be considered confidential so as to fall within such a privilege. See, e.g., Pereira v. United States, 347 U.S. 1, 6, 74 S. Ct. 358, 98 L. Ed. 435 (1954); Gutridge v. State, 236 Md. 514, 204 A.2d 557 (1964) (defendant in jail sent oral message to wife by a trusty); see United States v. Pensinger, 549 F.2d 1150, 1153 (8th Cir. 1977); 81 Am. Jur. 2d, Witnesses § 155; note, “Husband-Wife Privilege,” 33 Conn. B.J. 182, 186 (1959). Pereira points out that “[although marital communications are presumed to be confidential, that presumption may be overcome by proof of facts showing that they were not intended to be private. . . . The presence of a third party negatives the presumption of privacy. Wigmore, Evidence, § 2336.” Pereira v. United States, supra. According to Hargrove’s testimony, at least two of the claimed confidential communications were to separate third parties and therefore no error can be predicated on either of them; this alone would serve to make any error as to the others harmless. “A judgment need not be reversed merely because inadmissible evidence has been admitted, if permissible evidence to the same effect has also been placed before the jury.” State v. Barber, 173 Conn. 153, 160, 376 A.2d 1108 (1977); see also State v. Dolphin, 195 Conn. 444, 454-55, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985); State v. Randolph, 190 Conn. 576, 589-90, 462 A.2d 1011 (1983); State v. Piskorski, 177 Conn. 677, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); State v. Jeustiniano, 172 Conn. 275, 283, 374 A.2d 209 (1977).

This matter is remanded to the trial court, Byrne, J., for proceedings not inconsistent with this opinion.

In this opinion the other judges concurred.

       The defendant appeals from the judgment of conviction, Docket No. 12304, and has assigned as error the trial court’s actions in refusing to permit him to waive the statute of limitations in order to plead to the substitute information of May 10,1983. The defendant also filed an interlocutory appeal before trial based upon this refusal by the trial court to permit him to plead to the substitute information. Because we dispose of this statute of limitations claim in Docket No. 12304, we dismiss Docket No. 12159 as moot and also as prematurely taken prior to the rendition of a final judgment.

       General Statutes § 53a-56a provides in part: “(a) A person is guilty of manslaughter in the second degree with a firearm when he commits manslaughter in the second degree as provided in section 53a-56, and in the commission of such offense he uses or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, rifle, machine gun or other firearm. . .
      General Statutes § 53a-56 provides in part: “(a) A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person; or (2) he intentionally causes or aids another person, other than by force, duress or deception, to commit suicide. . . .”

       In declining to arraign the defendant on the substitute information, the court said: “Mr. Seligson, I’m not going to go through the useless act of having the substituted information read—your client, whatever he’s going to do with it, and then me going through a question and answer period and at the end of it saying I’m not going to accept the plea and then go back to the original information or indictment. I’m not going to do that. That’s— That’s just a waste of the Court’s time.”

       General Statutes § 54-193 provides in relevant part: “(b) No person may be prosecuted for any offense, except a capital felony or a class A felony, for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed. No person may be prosecuted for any other offense, except a capital felony or a class A felony, except within one year next after the offense has been committed.”

       On appeal, the defendant argues that the remand, if error is found on the issue of the statute of limitations, should be that “the case [be remanded] with instructions that a guilty plea be entered pursuant to his plea agreement with the state.” Our remand will not so order. One of the matters the defendant overlooks is that his plea bargain with the state does not appear in the record.

       We can assume, without deciding, that such a superseding substitute information in this case would not have prevented or precluded a subsequent presentment of the defendant on the charge of murder in which there is no statute of limitations if either the proffered guilty plea or the negotiated plea bargain were not accepted by the trial court.

       We have not overlooked the fact that the substitute information charges a crime which is not a lesser included offense of that charged in the grand jury indictment.

       The defendant’s motion to dismiss was as follows:
      “The Defendant in the above entitled action, based upon the Fifth and Fourteenth Amendments of the United States Constitution and the Constitution of the State of Connecticut hereby respectfully requests that the charges pending against him be dismissed. In support of this the Defendant presents the following:
      “1. The crime of which he is accused occurred on April 8, 1977.
      “2. The Defendant was arrested on November 9,1982 pursuant to a warrant issued on November 9, 1982.
      “3. As a result of the excessive delay between the time of the offense charged and the arrest, the Defendant has been [compromised] in his ability to present a defense thereby depriving him of due process of law.
      “WHEREFORE, the Defendant respectfully requests that the charges against him be dismissed.”

       Waugh testified at the trial and his testimony from the transcript fairly read presented some inconsistencies upon which he was closely cross-examined.

       Upon the completion of Pipkin's direct examination, the transcript discloses that the state handed to defense counsel two statements, presumably of Pipkin, one dated August 24,1979, and another dated September 9, 1982. Neither of these statements became full exhibits. Pipkin and Waugh each had a prior felony record.

       General Statutes § 54-84a, entitled “Privilege of spouse,” provides: “If any person on trial for crime has a husband or wife, he or she shall be a competent witness but may elect or refuse to testify for or against the accused, except that either spouse who has received personal violence from the other or is the spouse of one who is charged with violation of any of sections 53-20, 53-21, 53-23, 53-25, 53-304, 53a-70, 53a-70a, 53a-71 and 53a-83 to 53a-88, inclusive, may, upon his or her trial for offenses arising out of such personal violence or from violation of the provisions of any of said sections, be compelled to testify in the same manner as any other witness.”

       The defendant and Lorna Omer were married on August 5,1977, separated in December, 1980, and divorced in November, 1981. At the time of the trial, she was remarried and was known as Lorna Hargrove. There was no evidence that any of the alleged confidential communications were made before or after the marriage.

       In State v. Hoyt, 47 Conn. 518 (1880), the defendant husband was charged with the murder of his father. At the trial, the state had “possession of several letters written by the defendant to his wife, (how obtained or whether they were ever in the wife’s possession did not appear),” which were offered into evidence by the state as containing admissions inconsistent with the defendant’s testimony in court with his insanity claim. Id., 540. The court admitted them over the defendant’s objection that they were confidential communications between husband and wife.
      On appeal, this court found that doing so “violated no rule of evidence” and went on to say: “The question was not whether the husband or wife could have been compelled to produce the evidence, but whether, when the letters fell into the hands of a third person, the sacred shield of the privilege went with them. We think not. 1 Greenl. Ev., § 284a. ...” (Emphasis added.) Id.
      The citation to Professor Greenleaf s treatise by the Hoyt court is provocative in view of the fact that Greenleaf had earlier, in 1842, announced the existence of a “distinct privilege [apart from marital status] for marital communications . . . . ” McCormick, Evidence (8d Ed. 1984) § 78, pp. 188-89.

       Professor Wigmore’s position that the policy which should lie at the basis of every rule of privileged communications “appears to be satisfied in the privilege for communications between husband and wife” is appealing. That policy is that (1) the communications originate in confidence, (2) the confidence is essential to the relation, (3) the relation is a proper object of encouragement by the law, and (4) the injury that would inure to it by disclosure is probably greater than the benefit that would result in the judicial investigation of the truth. 8 Wigmore, Evidence (McNaughton Rev.) § 2332, p. 642.


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Brian S. Mead v. J. William Burns, Commissioner of Transportation, et al.
    (12704)
    Peteks, C. J., Healey, Dannehy, Santaniello and Callahan, Js.
    Argued April 1
    decision released May 20, 1986

      James C. Mulholland, for the appellant (plaintiff).

      Louis B. Blmnenfeld, with whom was Lorinda S. Coon, for the appellee (defendant Aetna Life and Casualty Company).

      Joseph I. Lieberman, attorney general, and Robert M. Langer, assistant attorney general, filed a brief as amici curiae.
   Peters, C. J.

The dispositive issue on this appeal is

the scope of an insurance company’s statutory liability for alleged failure to conduct a reasonable investigation of a property damage claim against its insured. The plaintiff, Brian S. Mead, brought an action under General Statutes § lSa-144 against the named defendant, J. William Burns, commissioner of transportation of the state of Connecticut, to recover compensatory damages because the plaintiffs truck was damaged when it slid and overturned on an ice covered highway. The plaintiff joined with this cause of action two counts against the defendant Aetna Life and Casualty Company (hereinafter the insurer), which had undertaken to insure the state of Connecticut for claims brought under § 13a-144. The plaintiff alleged that the defendant insurer had knowingly and in bad faith refused to pay the plaintiffs claim without conducting a reasonable investigation based upon all the available information. In count two of his complaint, the plaintiff claimed that this alleged conduct violated the Connecticut Unfair Insurance Practices Act (hereinafter CUIPA); General Statutes §§ 38-60 and 38-61 (6) (d); and that this violation entitled him to recover both compensatory and punitive damages. In count three of his complaint, the plaintiff claimed that this alleged conduct also violated the Connecticut Unfair Trade Practices Act (hereinafter CUTPA); General Statutes § 42-110b; and that this violation entitled him to recover compensatory damages, punitive damages and attorney’s fees. The trial court, Corrigan, J., granted the motion of the defendant insurer to strike counts two and three of the plaintiff’s complaint. After a separate hearing, the trial court, Allen, J., found for the plaintiff on the first count of his complaint and adjudged that the defendant commissioner pay him $1700 in compensatory damages. On the motion of the plaintiff, in order to allow the filing of an appeal, the trial court, Kelly, J., thereafter rendered a judgment on the second and third counts of the plaintiff’s complaint in favor of the defendant insurer. The plaintiff has appealed only from the judgment on the motion to strike these latter counts of his complaint. We find no error.

It is well settled that “[wjhere an appeal is taken from a judgment following the granting of a motion to strike, we take the facts to be those alleged in the amended complaint construed in a manner most favorable to the pleader. Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 472, 427 A.2d 385 [1980]; Stradmore Development Corporation v. Commissioners, 164 Conn. 548, 550-51, 324 A.2d 919 [1973]; Senior v. Hope, 156 Conn. 92, 97, 239 A.2d 486 [1968]; Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 557, 227 A.2d 418 [1967]. For purposes of appeal, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. DeMello v. Plainville, 170 Conn. 675, 677, 368 A.2d 71 [1976]; McAnerney v. McAnerney, 165 Conn. 277, 282, 334 A.2d 437 [1973]. See Practice Book, 1978, § 151.” Amodio v. Cunningham, 182 Conn. 80, 82-83, 438 A.2d 6 (1980). In the plaintiff’s amended complaint, he alleged that the defendant insurer had knowingly and in bad faith refused to pay his claim against the insured, but he did not allege that the insurer’s conduct constituted a general practice of refusal to pay claims without a reasonable investigation. The trial court concluded that these allegations did not suffice to establish a violation of either CUIPA or CUTPA and accordingly granted the motion to strike filed by the defendant insurer.

The plaintiff maintains that, in striking the second and third counts of his complaint that contained these averments, the trial court erred: (1) in construing CUIPA to require a litigant to prove more than a single violation of § 38-61 (6) (d); and (2) in construing CUTPA to require a litigant to prove a violation of CUIPA. The defendant insurer claims, as alternate grounds upon which to sustain the action of the trial court; see Practice Book § 3012 (a); that: (1) CUIPA does not authorize a private cause of action; (2) neither CUIPA nor CUTPA authorizes a private cause of action by a third party claimant; and (3) neither CUIPA nor CUTPA authorizes a private cause of action against an insurer before the underlying action against the insured has been resolved. Because we agree with the trial court’s construction of CUIPA and CUTPA, we need not reach the issues raised by the defendant’s § 3012 (a) papers.

I

The first issue that we must address is the scope of liability imposed by CUIPA on the insurance industry. That issue raises two questions: (1) what kind of conduct is proscribed by CUIPA? and (2) who is authorized to enforce violations of CUIPA? The latter question would come into play only if we were to conclude, contrary to the view of the trial court, that the plaintiffs complaint had alleged conduct that constituted a violation of CUIPA.

The provisions of CUIPA which the plaintiff invoked in the second count of his complaint are §§ 38-60 and 38-61 (6) (d). CUIPA, in § 38-60, forbids any person engaged in the business of insurance in this state from engaging “in any unfair method of competition or in any unfair or deceptive act or practice prohibited by sections 38-60 to 38-64, inclusive.” The plaintiff does not maintain that § 38-60 by itself affords him a remedy, but relies instead on the § 38-61 (6) prohibition of “unfair claim settlement practices.” Among the “unfair claim settlement practices” that the latter section proscribes are: “[committing or performing with such frequency as to indicate a general business practice any of the following . . . (d) refusing to pay claims without conducting a reasonable investigation based upon all available information . . . .” The plaintiff argues that § 38-61 (6) (d) applies to his case, despite his conceded failure to allege a general business pattern of dereliction in investigation. The plaintiff advances two reasons in support of his argument. One of these is a linguistic analysis of the text of § 38-61 (6) (d), while the other relies on the relationship between federal and state regulation of insurance. Like the trial court, we find neither of these reasons persuasive.

The plaintiff’s linguistic analysis focuses on the placement and the punctuation of the clause “with such frequency as to indicate a general business practice” in § 38-61 (6). According to the plaintiff, this clause modifies only the word “performing” and not the word “committing.” Although neither “committing” nor “performing” is defined in CUIPA, the plaintiff urges us to assign a separate meaning to each word in order to avoid disregarding one of them as surplusage. He suggests that because “committing” has a volitional element not found in “performing,” it was plausible for the legislature to have attached stricter conditions to liability for mere “performing” than to liability for “committing.” The propriety of this reading of the statute is reinforced, he maintains, by the absence of punctuation setting off the modifying clause.

While the text of § 38-61 (6) (d) could indubitably be clearer, we believe the fairer reading of the governing language is to construe the “general business practice” clause as a modifier of both “performing” and “committing.” A narrow construction of this provision is appropriate because CUIPA authorizes the imposition of criminal penalties for the commission of the conduct it proscribes. See General Statutes § 38-62 (b). We have repeatedly held that ambiguity in penal statutes requires a construction limiting rather than expanding civil liability. Caldor’s, Inc. v. Bedding Barn, Inc., 177 Conn. 304, 316-18, 417 A.2d 343 (1979); Nowak v. Nowak, 175 Conn. 112, 124-25, 394 A.2d 716 (1978). This principle of statutory construction outweighs inferences derived from punctuation and duplicatory verbiage. Looking to the statute as a whole, we believe that claims of unfair settlement practices under CUIPA require a showing of more than a single act of insurance misconduct.

As a second reason for a contrary construction, the plaintiff asserts that a broad reading of CUIPA is required in order to implement legislative intent to preempt federal regulation. After the decision of the United States Supreme Court in United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 64 S. Ct. 1162, 88 L. Ed. 1440, reh. denied, 323 U.S. 811, 65 S. Ct. 26, 89 L. Ed. 646 (1944), holding that Congress had the authority under the commerce clause to regulate interstate insurance transactions, it became likely that insurance practices would come under the regulatory umbrella of the federal trade commission. As a result, Congress enacted the McCarran-Ferguson Act, 15 U.S.C. § 1012 (b), which authorized federal regulation of insurance only “to the extent that such business is not regulated by State Law.” In response, the National Association of Insurance Commissioners in 1947 promulgated a model insurance trade practices act to assure continued state supervision of the insurance industry. That model act was the basis for this state’s enactment of CUIPA in 1955, and the legislative history at that time demonstrates that the legislature intended to preserve state regulation of insurance practices. See 6 S. Proc., Pt. 6,1955 Sess., pp. 2001-2002; 6 H. R. Proc., Pt. 2,1955 Sess., pp. 1036-37. The model act was amended in 1971 to include a section regulating unfair claim settlement practices, and this state enacted these new provisions in 1973. According to the plaintiff, a state legislative concern to avoid federal regulation would necessarily have led the legislature to intend to encompass all unfair settlement practices, whether they were single acts or whether they constituted a general business practice.

The plaintiffs argument finds little support in the existing authorities under the model act. The National Association of Insurance Commissioners, in its model regulations, interprets the model act as proscribing unfair claims settlements only if the insurer “performs any of the acts or practices . . . with such frequency as to indicate a general business practice.” Houser, “Unfair Claims Settlement Practices Act—How the Courts Have Interpreted the Act,” 15 The Forum 336, 347 (1979). Courts in other jurisdictions that have enacted the model act have construed its prohibitions to preclude liability for isolated instances of insurer misconduct. Klaudt v. Flunk, 202 Mont. 247, 253-54, 658 P.2d 1065 (1983); Hubbell v. Trans World Life Ins. Co., 50 N.Y.2d 899, 901, 408 N.E.2d 918, 430 N.Y.S.2d 589 (1980); Jenkins v. J. C. Penney Casualty Ins. Co., 280 S.E.2d 252, 259-60 (W. Va. 1981); contra Royal Globe Ins. Co. v. Superior Court, 23 Cal. 3d 880, 890-91, 592 P.2d 329, 153 Cal. Rptr. 842 (1979); and see Swanson v. Bankers Life Co., 389 Mass. 345, 349, 450 N.E.2d 577 (1983) (issue expressly left unresolved). Although these opinions have not expressly addressed the issue of state preclusion of federal regulation, we may presume that the courts were familiar with the history and the origin of the model act. Furthermore, a leading treatise on the law of insurance takes the position that state legislation will comply with the opting-out provisions of the McCarran Act so long as the state statute undertakes general regulation of the insurance industry in that state. “It is not necessary that every possible problem which could possibly arise be regulated.” 16A Appleman, Insurance Law and Practice (1981) § 8886, pp. 487-89.

In the light of these considerations, the motion to strike count two of the plaintiffs complaint was properly granted. The plaintiff having elected not to amend his complaint thereafter, the judgment for the defendant on this count was not in error. See Practice Book § 157.

II

The second issue that we must address is the scope of the liability imposed by CUTPA on the insurance industry. That issue also has two subparts: (1) is the insurance industry entirely exempt from CUTPA because that industry is regulated by CUIPA? and (2) if the insurance industry is not exempt from CUTPA regulation, may conduct that does not violate CUIPA constitute an unfair act or practice under CUTPA?

The plaintiff, supported by the attorney general as amicus curiae, urges us to hold that our statutes do not grant the insurance commissioner exclusive jurisdiction to regulate the conduct of the insurance industry. For the argument that the jurisdiction of the insurance commissioner under CUIPA is concurrent with that of the commissioner of consumer protection, the attorney general and private litigants under CUTPA, the plaintiff relies on statutory provisions in both of the governing statutes. In CUIPA, § 38-62 (d) states: “No order of the commissioner under sections 38-60 to 38-64, inclusive, shall relieve or absolve any person affected by such order from any liability under any other laws of this state.” (Emphasis added.) In CUTPA, § 42-110b (a) provides that “[n]o person shall engage in . . . unfair or deceptive acts or practices in the conduct of any trade or commerce. ” (Emphasis added.) In addition, CUTPA’s exemption provision, § 42-110c (a), states: “Nothing in this chapter shall apply to: (1) Transactions or actions otherwise permitted under law as administered by any regulatory board or officer acting under statutory authority of the state or of the United States . . . . ” In combination, these statutory provisions do indicate that the legislature elected to subject insurance practices to multiple rather than to singular regulatory supervision. This is a choice that the legislature was empowered to make. See Mazzola v. Southern New England Telephone Co., 169 Conn. 344, 359, 363 A.2d 170 (1975).

The defendant’s argument to the contrary calls to our attention the fact that the legislature enacted CUTPA at the same session at which it enacted amendments to CUIPA covering unfair settlement practices. According to the defendant, this simultaneity of enactment, coupled with the greater specificity of CUIPA, is evidence of legislative intent that the two statutes be assigned to separate rather than to overlapping spheres. The defendant’s position is consistent with the CUTPA exemption provision as enacted in that year. In 1973, § 42-llOc (a) expressly excluded “[transactions or actions otherwise permitted or administered by any regulatory board.” (Emphasis added.) In 1976, however, the legislature amended the CUTPA exemption section to substitute “under law as administered” for “or administered,” and this is the language presently before us. Public Acts 1976, No. 76-303, § 1. This statutory history lends more strength to the argument of the plaintiff than of the defendant.

Although this court has not explicitly addressed the question of overlapping CUTPA and CUIPA jurisdiction, a recent case lends further support to the position of the plaintiff on this issue. Griswold v. Union Labor Life Ins. Co., 186 Conn. 507, 519-21, 442 A.2d 920 (1982), involved allegations of unfair trade practices in violation of General Statutes §§ 42-110b, 38-61 (1), 38-61 (6) (a), (d), (f), (g), (h) and (m). We there held that a litigant was “entitled to maintain a private right of action for monetary damages for alleged unfair trade practices, as defined by § 38-61, without first exhausting the administrative remedies under § 38-62.” Griswold v. Union Labor Life Ins. Co., supra, 520-21. Although the focus of attention in Griswold was on exhaustion of administrative remedies, its holding implicitly affirms the existence of a private cause of action under CUTPA to enforce alleged CUIPA violations. This inference is reinforced by Griswold’s reservation of the question of “whether a similar action for damages is specifically authorized by § 38-62 (d).” Id., 521 n.12. We now expressly hold, as have a number of trial courts in this state, that the legislature has manifested an intention to make insurance practices the subject of two regulatory statutes, CUIPA and CUTPA. We concur in the reasoning of the Supreme Judicial Court of Massachusetts, interpreting substantially similar statutory language, that “[t]he mere existence of one regulatory statute does not affect the applicability of a broader, nonconflicting statute, particularly when both statutes provide for concurrent coverage of their common subject matter.” Dodd v. Commercial Union Ins. Co., 373 Mass. 72, 78, 365 N.E.2d 802 (1977).

The determination that it is possible to state a cause of action under CUTPA for a violation of CUIPA requires us to address the second question arising under count three of the plaintiffs complaint: Under what circumstances, if any, may conduct that does not violate CUIPA constitute an unfair act or practice under CUTPA? Despite our conclusion, in part I of this decision, that a single failure to conduct a reasonable investigation of an insurance claim, in the absence of a “general business practice,” does not constitute a violation of CUIPA, the plaintiff maintains that he may pursue a CUTPA violation for a singular failure to investigate. We disagree.

The plaintiff cites our recent decision in Conaway v. Prestia, 191 Conn. 484, 464 A.2d 847 (1983), in support of his argument that conduct not specifically prohibited by CUIPA may nonetheless offend the public policy of that statute and therefore may be actionable under CUTPA. In Conaway, we noted that CUTPA directs us to the “ ‘ “interpretations given by the Federal Trade Commission and the federal courts to Section 5 (a) (1) of the Federal Trade Commission Act (15 U.S.C. § 45 (a) (1)) ... as from time to time amended.” § 42a-110b (b).’ ” Conaway v. Prestia, supra, 492; Ivey, Barnum & O’Mara v. Indian Harbor Properties, Inc., 190 Conn. 528, 533, 461 A.2d 1369 (1983). In order to provide guidance for CUTPA’s general proscription of unfair or deceptive acts or practices, we adopted the standard of FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 92 S. Ct. 898, 31 L. Ed. 2d 170 (1972). Conaway v. Prestia, supra, 492-93; and see Sportsmen’s Boating Corporation v. Hensley, 192 Conn. 747, 756-57, 474 A.2d 780 (1984); McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 568, 473 A.2d 1185 (1984). Under that standard, the federal trade commission looks to a number of factors in deciding whether an action or practice is unfair: “ ‘(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers . . . .’” FTC v. Sperry & Hutchinson Co., supra, 244 n.5. In Conaway v. Prestia, we applied this standard to permit a CUTPA class action for damages against landlords who had collected rent for substandard dwelling units for which they had, in violation of statute, failed to obtain certificates of occupancy. Even though there was no statutory prohibition of such rent collections, we found that the governing statutes embodied a public policy which made it an unfair practice to collect rents for substandard housing. Conaway v. Prestia, supra, 492-93.

The plaintiff and the attorney general, as amicus curiae, argue that, under Conaway v. Prestía and the federal standard that it incorporates, this plaintiff may rely on a general public policy against unfair insurance practices that transcends the specific prohibitions of § 38-61 (6) (d). The plaintiff maintains that CUIPA’s list of unfair settlement practices in § 38-61 (6) embodies a “concept of fairness” for insurance settlements that is enforceable under CUTPA, whether or not such acts or practices occur as part of a general business practice. Because, in the view of the plaintiff, the requirement of establishing a general business practice relates only to the issue of a technical violation of CUIPA, the underlying public policy established by CUIPA will be affirmed by permitting a CUTPA cause of action even when there is no violation of CUIPA.

The plaintiffs argument misconstrues the holdings of Conaway v. Prestia, supra, and of Griswold v. Union Labor Life Ins. Co., supra. Although Conaway holds that CUTPA may authorize a cause of action that builds upon the public policy embodied in specific statutory provisions, such a CUTPA claim must be consistent with the regulatory principles established by the underlying statutes. In Griswold, we held that a litigant complaining of unfair insurance practices was entitled to maintain a private right of action under CUTPA “for alleged unfair trade practices, as defined by § 38-61.” Griswold v. Union Labor Life Ins. Co., supra, 520. The definition of unacceptable insurer conduct in § 38-61 reflects the legislative determination that isolated instances of unfair insurance settlement practices are not so violative of the public policy of this state as to warrant statutory intervention. Under CUTPA, as under CUIPA, a litigant is bound by this legislative determination.

We recognize that the Federal District Court in Doyle v. St. Paul Fire & Marine Ins. Co., 583 F. Sup. 554, 557 (D. Conn. 1984), drew a contrary inference from our decision, in Griswold, that CUTPA authorized private causes of action to enforce a claim derived from CUIPA. The Doyle court concluded that it was implicit in the authorization of a private cause of action that an individual claimant should be permitted to seek redress without proof of a general course of conduct. In our view, it would be more anomalous to permit a CUTPA claim to override a CUIPA regulatory pattern than to require a private litigant, using modem discovery techniques or enlisting others in a class action, to comply with the statutory requirements of § 38-61.

We conclude, therefore, that the trial court correctly granted the motion of the defendant insurer to strike count three of the defendant’s complaint. The court properly rendered judgment for the defendant on this count.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 13a-144. damages for injuries sustained on state highways or sidewalks. Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the superior court. No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. Such action shall be tried to the court or jury, and such portion of the amount of the judgment rendered therein as exceeds any amount paid to the plaintiff prior thereto under insurance liability policies held by the state shall, upon the filing with the comptroller of a certified copy of such judgment, be paid by the state out of the appropriation for the commissioner for repair of highways; but no costs or judgment fee in any such action shall be taxed against the defendant. This section shall not be construed so as to relieve any contractor or other person, through whose neglect or default any such injury may have occurred, from liability to the state; and, upon payment by the comptroller of any judgment rendered under the provisions of this section, the state shall be subrogated to the rights of such injured person to recover from any such contractor or other person an amount equal to the judgment it has so paid. The commissioner, with the approval of the attorney general and the consent of the court before which any such action is pending, may make an offer of judgment in settlement of any such claim. The commissioner and the state shall not be liable in damages for injury to person or property when such injury occurred on any highway or part thereof abandoned by the state or on any portion of a highway not a state highway but connecting with or crossing a state highway, which portion is not within the traveled portion of such state highway. The requirement of notice specified in this section shall be deemed complied with if an action is commenced, by a writ and complaint setting forth the injury and a general description of the same and of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of such notice.”

       “[General Statutes] Sec. 38-60. unfair practice prohibited. No person shall engage in this state in any trade practice which is defined in section 38-61 as, or determined pursuant to sections 38-62 and 38-63 to be, an unfair method of competition or an unfair or deceptive act or practice in the business of insurance, nor shall any domestic insurance company engage outside of this state in any act or practice defined in subsections (1) to (12), inclusive, of section 38-61. The commissioner shall have power to examine the affairs of every person engaged in the business of insurance in this state in order to determine whether such person has been or is engaged in any unfair method of competition or in any unfair or deceptive act or practice prohibited by sections 38-60 to 38-64, inclusive. When used in said sections, ‘person’ means any individual, corporation, association, partnership, reciprocal exchange, interinsurer, Lloyd’s insurer, fraternal benefit society, and any other legal entity engaged in the business of insurance, including agents, brokers and adjusters.”
      General Statutes § 38-61 (6) (d) lists as an unfair claim settlement practice: “Committing or performing with such frequency as to indicate a general business practice any of the following . . . (d) refusing to pay claims without conducting a reasonable investigation based upon all available information.”

       “[General Statutes] Sec. 42-110b. unfairtrade practices prohibited, legislative intent, (a) No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.
      “(b) It is the intent of the legislature that in construing subsection (a) of this section, the commissioner and the courts of this state shall be guided by interpretations given by the Federal Trade Commission and the federal courts to Section 5 (a) (1) of the Federal Trade Commission Act (15 U.S.C. 45 (a) (1)), as from time to time amended.
      “(c) The commissioner may, in accordance with chapter 54, establish by regulation acts, practices or methods which shall be deemed to be unfair or deceptive in violation of subsection (a) of this section. Such regulations shall not be inconsistent with the rules, regulations and decisions of the federal trade commission and the federal courts in interpreting the provisions of the Federal Trade Commission Act.
      “(d) It is the intention of the legislature that this chapter be remedial and be so construed.”

       Practice Book § 3012 (a) provides: “The appellant shall send, as set forth in Sec. 3013, to the chief clerk of the supreme court at the same time the appellant sends him a copy of the appeal:
      “(a) A preliminary statement of the issues intended for presentation on appeal. If the appellee wishes to present for review alternate grounds upon which the judgment may be affirmed, or if he wishes to present for review adverse rulings or decisions of the court which should be considered on appeal in the event the appellant is awarded a new trial, or if he wishes to claim that a new trial rather than a directed judgment should be ordered if the appellant is successful on the appeal, he may file a preliminary statement of issues within fourteen days from the filing of the appeal.”

       This question was reserved for decision in Griswold v. Union Labor Life Ins. Co., 186 Conn. 507, 521 n.12, 442 A.2d 920 (1982), where, as here, its resolution was not required.

       General Statutes § 38-62 (b) provides: “If, after such hearing, the commissioner determines that the person charged has engaged in an unfair method of competition or an unfair or deceptive act or practice, he shall reduce his findings to writing and shall issue and cause to be served upon the person charged with the violation a copy of such findings and an order requiring such person to cease and desist from engaging in such method of competition, act or practice and if the act or practice is a violation of section 38-61, the commissioner may at his discretion order any one or more of the following: (i) Payment of a monetary penalty of not more than one thousand dollars for each and every act or violation but not to exceed an aggregate penalty of ten thousand dollars unless the person knew or reasonably should have known he was in violation of section 38-60, 38-61, this subsection and subsection (e), in which case the penalty shall be not more than five thousand dollars for each and every act or violation but not to exceed an aggregate penalty of fifty thousand dollars in any six-month period; (ii) suspension or revocation of the person’s license if he knew or reasonably should have known he was in violation of said sections and subsections.”

       Practice Book § 157 provides: “Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint, counterclaim or cross complaint has been stricken, and the party whose pleading has been so stricken fails to file a new pleading within that fifteen-day period, the court may upon motion enter judgment against said party on said stricken complaint, counterclaim or cross complaint.”

       We express no opinion about whether the facts alleged by the plaintiff would have afforded him a common law remedy. Where CUTPA applies, it permits a recovery of punitive damages and attorney’s fees that the common law does not ordinarily permit.