source: Caselaw Access Project

author: NORCOTT, J. VERTEFEUILLE, J.,

license: Public Domain

text:
    CAROL COLLINS v. COLONIAL PENN INSURANCE COMPANY ET AL.
    (SC 16123)
    Borden, Norcott, Katz, Palmer, Sullivan, Vertefeuille and Zarella, Js.

      Argued October 31, 2000
    officially released August 28, 2001

      Jon Berk, with whom was Patty G. Swan, for the appellants (defendant Raymond A. Sardinas et al.).

      Douglas P. Mahoney, with whom was Robert R. Sheldon, for the appellee (plaintiff).

       This appeal originally was heard by apanel consisting of Justices Borden, Norcott, Katz, Sullivan and Vertefeuille. Thereafter, this court, pursuant to Practice Book § 70-7 (b), sua sponte, ordered that the case be considered en banc. Justices Palmer and Zarella were added to the panel, and they have read the record, briefs and transcript of the original oral argument. The listing of justices reflects their seniority status on this court as of the date of oral argument.

   Opinion

NORCOTT, J.

This case requires that we address the manner in which a trial court treats an uninsured motorist settlement in relation to a subsequent award of damages by a jury for a single indivisible injury by joint tortfeasors. The plaintiff, Carol Collins, was injured in a multicar accident, and brought an action against the defendants, Raymond A. Sardinas and Raymond D. Sardinas, and her uninsured motorist carrier, the named defendant Colonial Penn Insurance Company (Colonial Penn), alleging negligence on the part of both the defendant and the unidentified driver of another vehicle. After a settlement was reached with Colonial Penn, and a jury verdict subsequently was rendered against the defendant, the trial court, Melville, J., denied the defendant’s motions for remittitur, to set aside the verdict, and for collateral source reduction. The defendant appealed to the Appellate Court from the judgment of the trial court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c). We reverse the trial court’s judgment.

The following facts are relevant to our disposition of this appeal. On November 14, 1994, the plaintiff sustained personal injuries and damage to her vehicle from a three car chain reaction collision. The accident arose as a result of an unidentified hit-and-run driver striking the defendant’s vehicle, which in turn caused the defendant’s vehicle to strike the plaintiffs vehicle in the rear while it was stopped at a traffic signal. Thereafter, the plaintiff brought this action against the defendant and Colonial Penn. The plaintiffs complaint alleged negligence on the part of both the defendant and the unidentified driver. Specifically, the plaintiff sought to recover damages from the defendant and Colonial Penn.

Four days after the jury trial commenced, the plaintiff withdrew her action against Colonial Penn after settling for $95,000. The trial proceeded against the defendant. After the close of evidence and the conclusion of a charge conference, but before closing arguments, the defendant submitted a memorandum of law asking the trial court to instruct the jury that negligence and damages should be apportioned between the defendant and Colonial Penn pursuant to General Statutes § 52-572h.

In addition, the defendant asked the court to submit a verdict form to the jury that would have allowed it to apportion the percentage of negligence and damages found in the event of a plaintiffs verdict. After hearing argument on whether apportionment applied to uninsured motorist benefits, the trial court concluded that it would not charge the jury or submit jury interrogatories on the issue of apportionment because the claim would fail procedurally and substantively. The court declined to permit this issue to be inserted into the case at that late date and further ordered counsel not to discuss the issue during closing arguments. Thereafter, the trial court charged the jury that, if it found the defendant liable for negligence, it was to award “fair, just and reasonable” damages. The jury returned a verdict for the plaintiff in the amount of $86,340.

The defendant then filed a motion for remittitur pursuant to General Statutes § 52-216a, a motion to set aside the verdict pursuant to General Statutes §§ 52-228b, 52-572h (f) and (n) and the common law, and a motion for collateral source reduction pursuant to General Statutes § 52-225a. The defendant claimed that, in order to prevent a double recovery, there should be a setoff reducing the jury award for the plaintiff by the amount of the settlement that the plaintiff had received from Colonial Penn, and, in the alternative, that the principles of apportionment should have been applied pursuant to § 52-572h. The trial court denied these motions, concluding that the principles of apportionment did not apply to uninsured motorist settlements. The trial court also concluded that the plaintiff had not received a double recovery and that, although the plaintiff may have come out better than she would have if there had not been an unidentified driver, equitable principles prevented the court from allowing the defendant, as a tortfeasor, rather than the plaintiff, from taking advantage of the settlement. This appeal followed.

This appeal raises the following issues: (1) whether the trial court improperly afforded the plaintiff a double recovery when it refused to deduct from the jury verdict rendered against the defendant the amount recovered under the antecedent settlement with Colonial Penn; and (2) whether the trial court improperly refused to instruct the jury regarding the issue of apportionment. We conclude that the trial court improperly refused to instruct the jury regarding the issue of apportionment. Because our resolution of the apportionment issue disposes of the appeal, we decline to address the double recovery issue.

The defendant claims that the trial court improperly refused to instruct the jury on the issue of apportionment of liability between the defendant and the unidentified driver. Thus, a precise construction of the issue before this court is whether the trial court, pursuant to § 52-572h, should have instructed the jury to apportion liability between Colonial Penn, which previously had settled, and the remaining defendant, whom the jury found liable for damages. As correctly recognized by the trial court, this issue was not properly preserved. Santopietro v. New Haven, 239 Conn. 207, 219-20, 682 A.2d 106 (1996); see also Practice Book § 60-5. The defendant’s statutory claim, however, falls under the plain error doctrine.

“Because statutory interpretation is a question of law, our review is de novo.” Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 396, 655 A.2d 759 (1995). “Well settled principles of statutory interpretation govern our review. When we construe a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to 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. . . . Furthermore, [w]e presume that laws are enacted in view of existing relevant statutes . . . because the legislature is presumed to have created a consistent body of law. . . . Conway v. Wilton, 238 Conn. 653, 663-64, 680 A.2d 242 (1996). We construe each sentence, clause or phrase to have a purpose behind it. State v. Ayala, 222 Conn. 331, 346, 610 A.2d 1162 (1992). In addition, we presume that the legislature intends sensible results from the statutes it enacts. State v. Parmalee, 197 Conn. 158, 165, 496 A.2d 186 (1985). Therefore, we read each statute in a manner that will not thwart its intended purpose or lead to absurd results. . . . Coley v. Camden Associates, Inc., 243 Conn. 311, 319, 702 A.2d 1180 (1997). . . . Linden Condominium Assn., Inc. v. McKenna, 247 Conn. 575, 583-84, 726 A.2d 502 (1999).” (Internal quotation marks omitted.) Southington v. Commercial Union Ins. Co., 254 Conn. 348, 357-58, 757 A.2d 549 (2000).

We begin our analysis with a brief review of the evolution of tort law in this state regarding the apportionment of damages among multiple tortfeasors. Prior to October 1,1986, this state followed the rules of joint and several liability with no contribution among joint tortfeasors. Stated briefly: “If the illegal conduct of each of the defendants was a proximate cause of the collision, they would be liable jointly and severally, the plaintiff would have a right to recover the entire amount of damages awarded from either, and, if he did so, the defendant paying them would have no right of contribution against the other; or the plaintiff might have sued either alone, and of course in the event of a recovery, that one would have been compelled to pay the entire amount of damages.” (Internal quotation marks omitted.) Donner v. Kearse, 234 Conn. 660, 666, 662 A.2d 1269 (1995).

Under the common law of joint and several liability, therefore, even a defendant whose degree of fault was comparatively small could be held responsible for the entire amount of damages, so long as his negligence was a proximate cause of the plaintiffs injuries. “Thus, the plaintiff could collect the entire amount of his judgment from the richest defendant, or from the defendant with the deepest pocket.” (Internal quotation marks omitted.) Id., 667.

In response largely to these concerns, the legislature undertook to reform the tort recovery provisions of our civil system, by enacting No. 86-338 of the 1986 Public Acts (Tort Reform I), which took effect October 1,1986. Tort Reform I replaced the common-law rule of joint and several liability with a system of apportioned liability, holding each defendant liable for only his or her proportionate share of damages. Specifically, § 3 (f) of Tort Reform I provided that each defendant initially would be liable for only that percentage of his negligence that “proximately caused the injury, in relation to one hundred per cent, that is attributable to each person whose negligent actions were a proximate cause of the damages . . . .” Therefore, under Tort Reform I, the jury, in determining the percentage of negligence attributable to any defendant, could take into account the negligence of any other person, regardless of whether that person was a party to the action. “Tort Reform I, however, did not provide the plaintiff with a means of securing payment of damages unless that person was also a party.” Dormer v. Kearse, supra, 234 Conn. 667.

“Under Tort Reform I, to avoid the possibility that a jury would find that the negligence of a nonparty was aproxímate cause of [the plaintiffs] injuries, [the] plaintiff was required to name as defendants all persons whose actions suggested even the slightest hint of negligence. The unwanted practical effect, therefore, was that plaintiffs were required to pursue claims of weak liability against third parties, thereby fostering marginal and costly litigation in our courts. . . .

“The legislature amended these tort recovery provisions just one year later when it enacted No. 87-227 of the 1987 Public Acts (Tort Reform II), the pertinent provisions of which now are codified in part under § 52-572h. These revisions, which took effect October 1, 1987, altered the class of individuals to whom the jury could look in determining whose negligence had been aproxímate cause of a plaintiff s injuries. In short, these revisions changed the focus of this class of negligent individuals from any person to any party and certain other identifiable persons. See General Statutes § 52-572h (c), (d), (f) [and] (n). Thus, while Tort Reform I provided that the jury, in determining the percentage of responsibility of a particular defendant, could also consider the entire universe of negligent persons, Tort Reform II limited this universe to only those individuals who were parties to the legal action or who were specifically identified in § 52-572h (n).” (Citation omitted; internal quotation marks omitted.) Eskin v. Castiglia, 253 Conn. 516, 525-26, 753 A.2d 927 (2000). Thus, the provisions set forth in § 52-572h establish two classes of persons whose negligence must be considered by the trier of fact: (1) the parties to the action; and (2) settled or released persons, as the term is defined in subsection (n).

Against this legislative landscape, we now consider whether, pursuant to § 52-572h, the jury in the present case should have been instructed to apportion liability between Colonial Penn, which previously had settled with the plaintiff, and the remaining defendant, whom the jury found liable for damages. The defendant argues that the juiy should have been instructed to apportion liability between the defendant and the unidentified driver pursuant to § 52-572h. Specifically, the defendant relies upon subsection (n) of § 52-572h, which provides that, although the settled or released person is discharged from all liability for contribution, the total award of damages is to be “reduced by the amount of the released person’s percentage of negligence determined in accordance with subsection (f) of this section.” Furthermore, the defendant argues that Colonial Penn was acting as a surrogate for the unidentified driver because it was brought into the dispute solely to litigate the unidentified driver’s negligence. Therefore, the defendant argues, the trial court improperly refused to instruct the jury to apportion liability pursuant to § 52-572h (n). In response, the plaintiff contends that no apportionment is allowed in an uninsured motorist action for the conduct of an unidentified driver. Specifically, the plaintiff asserts that apportionment is available only in actions sounding in negligence, and that because her claim against Colonial Penn was a contract action, apportionment would have been improper. In support of her claim, the plaintiff relies on § 52-572h (o) for the proposition that there is no apportionment of liability or damages between parties liable for negligence and parties liable “on any basis other than negligence . . . .” Because the plaintiffs claim against Colonial Penn had its basis in contract, rather than negligence, the plaintiff argues, no apportionment was required. We agree with the defendant.

An uninsured motorist claim may be brought in a multitortfeasor context so long as one of the tortfeasors is uninsured, or if one of the putative tortfeasors is unidentified, or the insurance coverage of one of the tortfeasors has been exhausted. See General Accident Ins. Co. v. Wheeler, 221 Conn. 206, 213, 603 A.2d 385 (1992). Traditionally, an action against an uninsured motorist carrier is one for insurance benefits and not for damages per se. Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 384-85, 698 A.2d 859 (1997); Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 817, 695 A.2d 1010 (1997). We previously have held, however, that in certain contexts, because of the “hybrid” nature of uninsured motorist coverage, the uninsured carrier operates in part as a “surrogate” for the financially irresponsible tortfeasor. Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 25, 26 nn.9 and 10, 699 A.2d 964 (1997).

In Haynes, we addressed the issue of whether payments made pursuant to an underinsured motorist policy should be treated as a common-law collateral source. Id., 22-23. We held that underinsured motorist benefits were not collateral sources, and we recognized the long-standing principle that an injured party may recover just damages for the same loss only once. Id., 28-31. In Haynes, a panel of arbitrators had determined that the plaintiffs claim against the underinsured motorist carrier was worth $650,000. The plaintiff made a full recovery of $650,000, receiving $630,000 from the underinsured motorist carrier, and $20,000, which the plaintiff already had recovered from the tortfeasor driver. Id., 20-21. On appeal, this court invoked the principle of double recovery and declined to permit the plaintiff to recover additional damages from the hospital and physicians who also allegedly had committed negligence. Id., 27-30. We reiterated the principle that the plaintiff may not be compensated twice where full recovery already had been made. Id., 23-24.

Our holding in Haynes acknowledged that underinsured motorist payments are not purely contractual in nature because such payments “operate in part as a liability insurance surrogate for the underinsured motorist third party tortfeasor.” Id., 25. We recognized that “underinsured motorist benefits are sui generis. They are contractual, but they depend on principles of tort liability and damages. Whether in any particular case underinsured motorist benefits should be treated as are other types of insurance must depend on a case-by-case analysis of the underlying purpose and the principles that apply to such benefits.” Id., 24. With regard to uninsured motorist benefits, therefore, we noted that the issue was whether such proceeds should be treated as a collateral source in each factual context. Id., 27. We concluded that, because the uninsured motorist carrier stepped into the shoes of, and acted as a surrogate for, the unidentified tortfeasor for purposes of characterizing payments under the uninsured motorist carrier, the relationship between the “underinsured motorist carrier and the defendant may be viewed as analogous to that of joint tortfeasors, and thus that the general tort rule precluding double recovery from joint tortfeasors should apply.” Id.

When examining § 52-572h, we must address not just whether a remand for apportionment is required, but how the plaintiffs settlement with Colonial Penn should be treated. In resolving the present dispute, it is important to understand the distinction between a jury award and a settlement. Unlike in Haynes, the plaintiff in the present case received a prior settlement award, not a prior arbitration award. Moreover, Haynes involved only common-law principles, rather than § 52-572h. Subsection (n) of § 52-572h provides that “the total award of damages is reduced by the amount of the released person’s percentage of negligence determined in accordance with subsection (f) of this section.” (Emphasis added.) The underlying rationale of subsection (n) is that, rather than a settlement reducing the amount of the jury or arbitration award dollar-for-dollar, as occurred in Haynes, the amount of the award is reduced by the settling party’s percentage of negligence. Thus, if a claimant settles with one potential tortfeasor, the plaintiff is allowed to keep the amount of that settlement, but the award against the remaining tortfeasor is reduced by the percentage of negligence attributable to the settling tortfeasor.

General Statutes § 52-225b specifically provides that “ ‘[collateral sources’ do not include amounts received by . . . settlement.” We affirmed this principle in Nash v. Yap, 247 Conn. 638, 654, 726 A.2d 92 (1999). In Nash, although decided pursuant to Tort Reform I, rather than Tort Refoim II, we noted that the statutory collateral source doctrine rested on the rule against double recovery, and that, “[u]nder Tort Reform I, but not under Tort Reform II, settlements are treated as deductible collateral sources.” Id., 649. Therefore, under Tort Refoim II, because settlements are not collateral sources, the jury’s allocation of the settled person’s percentage of liability measured against the total amount of the plaintiffs total damages, as stated in the jury award, determines whether the plaintiff will receive a windfall or a shortfall. A plaintiffs settlement with one tortfeasor in a multitortfeasor context, however, does not necessarily represent a claimant’s fair, just and reasonable damages but, rather, represents, in part, the parties’ assessments of the risks of litigation. Once having undertaken to bargain regarding those risks, the plaintiff receives the benefit or burden of the settlement. Our interpretation in the present case reaffirms our recognition of the public policy of encouraging settlements of claims. Dept. of Public Works v. ECAP Construction Co., 250 Conn. 553, 560-61, 737 A.2d 398 (1999) (“broad public policy considerations favor pretrial resolution of disputes between contracting parties”); Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., 239 Conn. 708, 759, 687 A.2d 506 (1997) (recognizing legitimate public policy interest of encouraging pretrial settlement of claims). The plaintiff, therefore, is entitled to keep the proceeds of the settlement with Colonial Penn.

Having clarified that the plaintiff is entitled to retain the settlement proceeds, we now address whether the remaining defendant is required to pay the entire amount of the fair, just and reasonable damages assessed by the jury for the injury that occurred. Resolution of this issue requires a close examination of § 52-572h. The pertinent provisions of § 52-572h provide in relevant part: “(c) In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1,1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party’s proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section.

“(d) The proportionate share of damages for which each party is liable is calculated by multiplying the recoverable . . . damages by a fraction in which the numerator is the party’s percentage of negligence, which percentage shall be determined pursuant to subsection (f) of this section, and the denominator is the total of the percentages of negligence, which percentages shall be determined pursuant to subsection (f) of this section, to be attributable to all parties whose negligent actions were a proximate cause of the injury . . . including settled or released persons under subsection (n) of this section. Any percentage of negligence attributable to the claimant shall not be included in the denominator of the fraction. . . .

“(f) The jury or, if there is no jury, the court shall specify . . . the percentage of negligence that proximately caused the injury, death or damage to property in relation to one hundred per cent, that is attributable to each party whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section ....

“(n) . . . [T]he total award of damages is reduced by the amount of the released person's percentage of negligence determined in accordance with subsection (f) of this section.

“(o) Except as provided in subsection (b) of this section, there shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence including, but not limited to, intentional, wanton or reckless misconduct, strict liability or liability pursuant to any cause of action created by statute, except that liability may be apportioned among patties liable for negligence in any cause of action created by statute based on negligence including ... an action for injuries caused by a motor vehicle owned by the state pursuant to section 52-556.” (Emphasis added.)

We recognize that the damages sustained by a claimant may be caused by the negligence of more than one tortfeasor under § 52-572h. Also, it is important to note that the purpose of § 52-572h was to change the common law of joint and several liability such that a defendant would be liable only for that portion of the damages’ for which he was responsible. In order to be consistent with both the language and the underlying policy of § 52-572h, this is a case where we acknowledge, as we did in Haynes, the sui generis nature of uninsured motorist benefits. Colonial Penn acted, in part, as a surrogate for the third party tortfeasor as well as a party against whom the plaintiff maintained a first party contract claim. See Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 26-31. In the present case, Colonial Penn was not only a named, identifiable party in the original complaint, but its function in this case was to litigate the blameworthiness of the unidentified hit-and-run driver. That is, its liability in the uninsured motorist contract was predicated on the negligence of the phantom driver. Id., 24-25.

The plaintiff, in her complaint, linked the cause of her damages not only to the negligence of the defendant, but also to the negligence of the unidentified driver when it named Colonial Penn as a defendant. Specifically, the plaintiffs complaint against Colonial Penn alleged that: “The injuries and damages suffered by the plaintiff were the result of the negligence and carelessness of the unidentified motor vehicle operator in that the unidentified operator failed to keep a proper lookout; the unidentified operator failed to properly brake his/her vehicle or take other evasive actions, so as to avoid a collision; in that he/she failed to keep his/her vehicle under proper control . . . .” As to the defendant, the complaint stated: “In addition to the negligence and carelessness of the unidentified motor vehicle operator, the injuries and damages sustained by the plaintiff were the result of the negligence and carelessness of the defendant . . . .” It is clear that, not only was the cause of action against Colonial Penn based on the negligence of the unidentified driver, but that the plaintiff affirmatively alleged that the unidentified driver and the defendant caused her injuries.

During trial, Colonial Penn, acting as a surrogate for the unidentified tortfeasor, settled its claim with the plaintiff for $95,000. Thereafter, the jury assessed the plaintiffs fair, just and reasonable damages in the amount of $86,340. Because the jury was not instructed to allocate the unidentified driver’s percentage of negligence, pursuant to § 52-572h (n), however, we do not know the percentage of liability that the remaining defendant is responsible for and what percentage of negligence can be attributed to the unidentified driver. To require the defendant to pay the entire amount of damages assessed by the jury in this multitortfeasor situation without apportionment, taking place essentially would be a reversion to the common law of joint and several liability, which was abolished by Tort Reform I and Tort Reform II, and in particular, by § 52-572h.

Our conclusion is also consistent with subsection (f) of § 52-572h. Subsection (f) (4) of § 52-572h provides that the jury is required to specify the percentage of negligence that is “attributable to each parly whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section . . . .” (Emphasis added.) In this case, the jury was not given an opportunity to allocate liability regarding the defendant or the settled party’s percentage of negligence. Although the plaintiff relies on Nash v. Yap, supra, 247 Conn. 642, for the proposition that the defendant is required to pay the jury determination of damages and that the plaintiff also retains any prior settlements, the proposition overlooks that in Nash, unlike in the present case, the jury had allocated the percentage of negligence of three tortfeasors.

Moreover, the plaintiffs reliance on § 52-572h (o), as amended by No. 99-96 of the 1999 Public Acts, which provides that “there shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence,” for the proposition that apportionment is not required because her claim against Colonial Penn was based on contract, not negligence, is misplaced. The plaintiffs argument ignores the nature of the complaint filed as described in the preceding paragraphs. The uninsured motorist statutes and regulations incorporate the negligence law of liability and damages involving claims where joint tortfeasors are present. The uninsured motorist statute, General Statutes § 38a-336 (a) (l), mandates uninsured motorist protection “of persons insured thereunder who are legally entitled to recover damages . . . .” (Emphasis added.) Without proof of the negligence of a tortfeasor and without proof of damages from such negligence or an inference of negligence and damages that prompts the uninsured motorist carrier to settle, there can never be a recoveiy of uninsured motorist benefits. Moreover, this principle is reiterated in § 38a-334-6 (a) of the Regulations of Connecticut State Agencies, which provides that the uninsured carrier is required to pay all sums that the insured is “legally entitled to recover as damages” from the uninsured tortfeasor. “Where, as here, more than one [provision] is involved, we presume that the legislature intended them to be read together to create a harmonious body of law . . . and we construe the [provisions], if possible, to avoid conflict between them.” (Internal quotation marks omitted.) Stern v. Allied Van Lines, Inc., 246 Conn. 170, 179, 717 A.2d 195 (1998). We conclude that the legislature, in enacting §§ 52-572h and 38a-336, did not intend to create a separate law of damages for uninsured motorist claims different from that which exists for traditional negligence awards. An insured, therefore, is “legally entitled to recover as damages” under § 38a-334-6 (a), her damages after they properly are apportioned pursuant to the dictates of § 52-572h.

In this case, recognizing the hybrid nature of uninsured motorist coverage with regard to the facts of this case allows for the principles guiding Tort Reform II to be applied equitably. For example, if the plaintiff had filed claims against two tortfeasors and subsequently released or settled with one, the remaining defendant would still be allowed the opportunity, pursuant to General Statutes §§ 52-102b and 52-572h, to have the jury apportion the percentage of negligence of each tortfeasor. Also, if the other driver had been underinsured instead of a hit-and-run driver, and had settled with the plaintiff, § 52-572h (n) would have been triggered and apportionment principles would have been submitted to the jury. Moreover, if one tortfeasor was uninsured and identified, and the injured party did not have uninsured motorist protection, this “financially irresponsible [driver]” could still be brought into the litigation for apportionment purposes and the plaintiffs recovery from the solvent tortfeasor potentially could be diminished. Lastly, if the unidentified motorist had been identified in this case and his Lability carrier paid money to the plaintiff on behalf of the tortfeasor, there would be no question that apportionment should apply.

Our conclusion in the present case should not be interpreted as recognizing no legal distinction between an uninsured motorist carrier and the unidentified tortfeasor. Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 25 (uninsured motorist carrier and third party tortfeasor “do not share a complete legal identity” [emphasis in original]); Mazziotti v. Allstate Ins. Co., supra, 240 Conn. 817 (for purposes of collateral estoppel, uninsured motorist carriers are not “the alter ego of the tortfeasor” and “do not share the same legal [status]”). In the present case, however, it would be inequitable and contrary to the spirit underlying § 52-572h, to allow a plaintiff who does have uninsured motorist coverage and has collected an amount pursuant to a settlement in a automobile accident involving multiple tortfeasors, to deny application of the principles of Tort Reform II, namely, that each individual tortfeasor pay its fair share or portion of damages sustained. This is especially significant because Colonial Perm was brought into the litigation solely to litigate the blameworthiness of the unidentified driver. We conclude that in this case there should be no substantive difference for apportionment purposes merely because the other tortfeasor is unidentified, so long as the under-insured carrier is named in the complaint to act as the unidentified driver’s surrogate. Therefore, given the statutory scheme underlying this case, the nature of the complaint, and the cause of the accident, we conclude that the surrogate analysis can be extended to apportionment principles and that our decision is consistent with Tort Reform II and §§ 52-572h and 52-225b. We conclude that the trial court improperly refused to instruct the jury regarding the issue of apportionment. The plaintiff is entitled to retain the settlement proceeds, but the case must be remanded so that the jury may assess the percentage of negligence and portion of liability for which the remaining defendant is responsible.

The judgment is reversed and the case is remanded for a new trial.

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

VERTEFEUILLE, J.,

with whom SULLIVAN, J., joins, dissenting. I respectfully disagree with the majority’s conclusion that liability must be apportioned between the negligent defendants, Raymond A. Sardinis and Raymond D. Sardinis (defendants), and the defendant Colonial Penn Insurance Company (Colonial Perm), the plaintiffs uninsured motorist insurance carrier, pursuant to General Statutes § 52-572h. I would conclude that § 52-572h (o) bars apportionment between a party liable for negligence and an uninsured motorist insurance carrier, whose liability arises under the contractual provisions of an insurance policy. That statute provides: “Except as provided in subsection (b) of this section, there shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence including, but not limited to, intentional, wanton or reckless misconduct, strict liability or liability pursuant to any cause of action created by statute, except that liability may be apportioned among parties liable for negligence in any cause of action created by statute based on negligence including, but not limited to, an action for wrongful death pursuant to section 52-555 or an action for injuries caused by a motor vehicle owned by the state pursuant to section 52-556.” (Emphasis added.) General Statutes § 52-572h (o).

Less than one year ago, in a case raising a similar issue, we interpreted § 52-572h (o) and unanimously concluded that it does not permit apportionment between a negligent defendant and a defendant liable on a product liability theory. Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 798-99, 756 A.2d 237 (2000). We recognized therein that “[t]he general effect of [§ 52-572h (o)] was to make clear that the apportionment principles of § 52-572h do not apply where the purported apportionment complaint rests on any basis other than negligence . . . .” (Internal quotation marks omitted.) Id., 801.

Our decision in Allard offers important background for my analysis of the present case. The defendant in that case, Liberty Oil Equipment Company (Liberty Oil), which was allegedly liable in negligence, sought to apportion liability to a product seller. Id., 789. In its apportionment complaint, Liberty Oil alleged only a theory of negligence against the product seller. Id., 790. We concluded, however, that “Liberty Oil cannot . . . convert its apportionment claim against [the product seller] into something other than a product liability claim simply by alleging only negligent misconduct.” Id., 800. The question before us, therefore, was whether § 52-572h, as amended by No. 99-69, § 1 (o), of the 1999 Public Acts (P.A. 99-69), allows for the apportionment of liability to a defendant on a product liability claim. Id., 798.

We began with a careful examination of the legislative history of P.A. 99-69 and concluded that “[t]he legislative history of P.A. 99-69 makes clear that its principal purpose was to overrule legislatively a portion of this court’s decision in Bhinder v. Sun Co., 246 Conn. 223, 717 A.2d 202 (1998). See, e.g., 42 S. Proc., Pt. 6, 1999 Sess., pp. 1797-98, remarks of Senator Donald E. Williams, Jr.; 42 H.R. Proc., Pt. 6, 1999 Sess., p. 1916, remarks of Representative Michael P. Lawlor; id., pp. 1918-19; see also generally Conn. Joint Standing Committee Hearings, Judiciary, Pt. 4,1999 Sess., pp. 1271-74, 1310-29, 1340-46, 1355-58, 1362, 1365, 1418-20, 1426-31; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 5, 1999 Sess., pp. 1538-50.” Allard v. Liberty Oil Equipment Co., supra, 253 Conn. 801-802. We further explained that in Bhinder v. Sun Co., supra, 225, “[t]his court held that: (1) as a matter of statutory interpretation, ‘the plain language of § 52-572h provides that only negligent persons may be cited in by the defendant for apportionment of liability purposes’; id., 230; and (2) nonetheless, ‘as a matter of common law, we should extend the policy of apportionment to permit a defendant in a negligence action to cite in as an apportionment defendant a party whose conduct is alleged to be reckless, wilful, and wanton.’ Id., 234.” Allard v. Liberty Oil Equipment Co., supra, 803.

On the basis of that examination of the legislative history of P.A. 99-69, we determined that the three purposes of P.A. 99-69 were as follows: “First, the legislature reaffirmed that, as a matter of statutory interpretation, only negligent persons may be cited in as apportionment defendants pursuant to the statute. . . . Second, the legislature made clear its intent that apportionment principles would not apply where the basis of liability of the purported apportionment defendant was based on conduct ‘other than negligence,’ including but not limited to intentional, wanton or reckless misconduct, strict liability, and liability pursuant to any cause of action created by statute. . . . Third, the legislature made clear its intent that, despite the specific bar to apportionment regarding statutory actions, liability may be apportioned among parties liable for negligence in statutory actions based on negligence, such as wrongful death actions and actions for injuries caused by state-owned motor vehicles.” (Emphasis in original.) Id., 803-804. We concluded, therefore, that “the apportionment principles of § 52-572h do not apply where the purported apportionment complaint rests on any basis other than negligence . . . .” (Internal quotation marks omitted.) Id., 801. We further concluded that “it would be inconsistent with the provisions of § 52-572h, as amended by P.A. 99-69, § 1 (o), to permit a defendant sued in negligence to claim apportionment against a product seller whose alleged misconduct tracks that of product liability . . . .” Id., 804.

I believe that our reasoning in Allard should guide our analysis in the present case. The plaintiff’s claim against Colonial Penn is a common-law contract claim based on the contract of insurance between Colonial Penn and the plaintiff. In the complaint, the plaintiff alleged that “[a]t the time of [the collision, the plaintiff] had an automobile policy with [Colonial Penn] providing for $100,000 in uninsured motorist coverage. [Colonial Penn] provided that [it] would pay to the plaintiff all damages suffered because of bodily injury to which she is legally entitled to recover from the unidentified motor vehicle operator up to the limits of the [Colonial Penn] policy applicable to this accident. Under the contract of insurance described above, the plaintiff has demanded that [Colonial Penn] pay to the plaintiff $100,000 but [Colonial Penn] has refused and neglected to pay the same.” The majority concludes, however, that the jury should have apportioned liability between the defendants and Colonial Penn under § 52-572h (o) because the claim against Colonial Penn is based on negligence in that Colonial Penn acts as a surrogate for the negligent unidentified tortfeasor in this case. I disagree.

The majority concludes that the action in the present case is based on negligence because “Colonial Perm acted, in part, as a surrogate for the third party tortfeasor . . . .” The majority requires apportionment as to Colonial Penn based on the reasoning that the “plaintiff . . . linked the cause of her damages not only to the negligence of the defendants], but also to the negligence of the unidentified driver when it named Colonial Penn as a defendant.” This reasoning is similar to that which we rejected in Allard v. Liberty Oil Equipment Co., supra, 253 Conn. 787.

In Allard, Liberty Oil argued that it was appropriate to apportion liability to the product seller “[g]iven that the . . . apportionment claim alleges negligence in relation to a defective product . . . .” (Internal quotation marks omitted.) Id., 805. In rejecting Liberty Oil’s argument that its product liability claim was essentially one based on negligence, we concluded that “[t]he theory behind the statutory limitation of apportionment claims to those involving negligence is that, in such a case, both the underlying claim of the plaintiff and the apportionment claim of the defendant are in relative pari materia, in that they both involve negligent conduct. The statutory actions based on negligence given as examples are consistent with that theory because they rest on the same notions of fault embodied in nonstatutory negligence actions. Product liability claims, however, do not rest on notions of fault.” Id., 805-806.

Similarly, a claim for uninsured motorist insurance benefits does not rest on the fault of the insurance carrier, but arises out of the insurance contract with the carrier. Although Colonial Penn’s liability is “premised in part on the contingency of the tortfeasor’s liability”; Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 817, 695 A.2d 1010 (1997); the action by the plaintiff against Colonial Penn is not based on any allegations of fault by Colonial Penn. As we recognized in Allard v. Liberty Oil Equipment Co., supra, 253 Conn. 803-804, the legislature clearly intended that liability be apportioned only on the basis of negligence, whether in an action arising under the common law or statute. The claim against Colonial Penn in this case is based on its insurance contract with the plaintiff and not on any negligence by Colonial Penn. The terms of § 52-572h (o) therefore expressly prohibit apportionment to Colonial Penn.

I further find that the reliance on Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 699 A.2d 964 (1997), by the majority for its surrogacy reasoning is misplaced. Citing Haynes, the majority concludes that “because of the ‘hybrid’ nature of uninsured motorist coverage, the uninsured carrier operates in part as a ‘surrogate’ for the financially irresponsible tortfeasor.” Although we acknowledged in Haynes that an uninsured motorist carrier can be seen as a surrogate for the toitfeasor, Haynes is not applicable to this case for two reasons. First, Haynes was based on common-law principles and not on § 52-572h, the statute that is directly at issue in the present case. Second, Haynes was decided in 1997, two years before § 52-572h was amended by adding subsection (o), which explicitly prohibits apportionment between parties liable in negligence and parties liable on any other basis. The reasoning in Haynes therefore has been superseded by the legislature’s adoption of § 52-572h (o) and should not be applied to reach a result contrary to the explicit provisions of § 52-572h (o).

“In construing a statute, we seek to ascertain and give effect to the apparent intent of the legislature. . . . [W]e are guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law . . . .” (Internal quotation marks omitted.) Board of Education v. New Haven, 237 Conn. 169, 180, 676 A.2d 375 (1996). Also, “[i]t is a well-recognized rule of statutory construction that the legislature is presumed to know all the existing statutes, the judicial interpretation of them, and the effect that its action or nonaction will have on them.” Mack v. Saars, 150 Conn. 290, 298, 188 A.2d 863 (1963). “And it is always presumed to have intended that effect which its action or non-action produces.” (Internal quotation marks omitted.) Civardi v. Norwich, 231 Conn. 287, 298, 649 A.2d 523 (1994).

In adopting subsection (o) of § 52-572h, the legislature could not have spoken more clearly: apportionment to a party liable on a basis other than negligence is expressly prohibited. Because the plaintiffs claim against Colonial Penn arises under a contract of insurance, I respectfully disagree with the majority’s conclusion that § 52-572h requires apportionment of liability to Colonial Penn in this case.

       The plaintiff brought an action against Raymond D. Sardinas, the owner of the vehicle that struck her, and Raymond A. Sardinas, the operator of the vehicle at the time of the accident. The parties agreed during trial that any verdict rendered against Raymond A. Sardinas also would be rendered against Raymond D. Sardinas. Although both Raymond D. Sardinas and Raymond A. Sardinas appealed, this opinion, hereinafter, will refer to both individuals as the defendant.

       The count in the plaintiffs complaint against Colonial Penn was based solely on the alleged negligence of the unidentified driver. Colonial Penn’s uninsured motorist coverage provided that it would pay to the plaintiff all damages suffered because of bodily injury for which she legally was entitled to recover from the unidentified motor vehicle operator up to the limits of her policy.

       As a special defense, Colonial Penn claimed the limits of coverage under the policy and also claimed a right to set off any payments received by the plaintiff from collateral sources in addition to any payments made by Colonial Penn in connection with other coverage under the insurance policy in question. The defendant did not claim any special defenses at that time.

       The limit of the uninsured motorist coverage policy between Colonial Penn and the plaintiff was $100,000.

       General Statutes § 52-572h provides: “(a) For the purposes of this sect ion: (1) ‘Economic damages’ means compensation determined by the trier of fact for pecuniary losses including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneconomic damages; (2) ‘noneconomic damages’ means compensation determined by the trier of fact for all nonpecuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering; (3) ‘recoverable economic damages’ means the economic damages reduced by any applicable findings including but not limited to set-offs, credits, comparative negligence, additur and remittitur, and any reduction provided by section 52-225a; (4) ‘recoverable noneconomic damages’ means the noneconomic damages reduced by any applicable findings including but not limited to set-offs, credits, comparative negligence, additur and remittitur.
      “(b) In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person or the person’s legal representative to recover damages resulting from personal injury, wrongful death or damage to property if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought including settled or released persons under subsection (n) of this section. The economic or noneconomic damages allowed shall be diminished in the proportion of the percentage of negligence attributable to the person recovering which percentage shall be determined pursuant to subsection (f) of this section.
      “(c) In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party’s proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section.
      “(d) The proportionate share of damages for which each party is liable is calculated by multiplying the recoverable economic damages and the recoverable noneconomic damages by a fraction in which the numerator is the party’s percentage of negligence, which percentage shall be determined pursuant to subsection (f) of this section, and the denominator is the total of the percentages of negligence, which percentages shall be determined pursuant to subsection (f) of this section, to be attributable to all parties whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section. Any percentage of negligence attributable to the claimant shall not be included in the denominator of the fraction.
      “(e) In any action to which this section is applicable, the instructions to the jury given by the court shall include an explanation of the effect on awards and liabilities of the percentage of negligence found by the jury to be attributable to each party.
      “(f) The jury or, if there is no jury, the court shall specify: (1) The amount of economic damages; (2) the amount of noneconomic damages; (3) any findings of fact necessary for the court to specify recoverable economic damages and recoverable noneconomic damages; (4) the percentage of negligence that proximately caused the injury, death or damage to property in relation to one hundred per cent, that is attributable to each party whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section; and (5) the percentage of such negligence attributable to the claimant.
      “(g) (1) Upon motion by the claimant to open the judgment filed, after good faith efforts by the claimant to collect from a liable defendant, not later than one year after judgment becomes final through lapse of time or through exhaustion of appeal, whichever occurs later, the court shall determine whether all or part of a defendant’s proportionate share of the recoverable economic damages and recoverable noneconomic damages is uncollectible from that party, and shall reallocate such uncollectible amount among the other defendants in accordance with the provisions of this subsection. (2) The court shall order that the portion of such uncollectible amount which represents recoverable noneconomic damages be reallocated among the other defendants according to their percentages of negligence, provided that the court shall not reallocate to any such defendant an amount greater than that defendant’s percentage of negligence multiplied by such uncollectible amount. (3) The court shall order that the portion of such uncollectible amount which represents recoverable economic damages be reallocated among the other defendants. The court shall reallocate to any such other defendant an amount equal to such uncollectible amount of recoverable economic damages multiplied by a fraction in which the numerator is such defendant’s percentage of negligence and the denominator is the total of the percentages of negligence of all defendants, excluding any defendant whose liability is being reallocated. (4) The defendant whose liability is reallocated is nonetheless subject to contribution pursuant to subsection (h) of this section and to any continuing liability to the claimant on the judgment.
      “(h) (1) A right of contribution exists in parties who, pursuant to subsection (g) of this section are required to pay more than their proportionate share of such judgment. The total recovery by a party seeking contribution shall be limited to the amount paid by such party in excess of such party’s proportionate share of such judgment.
      “(2) An action for contribution shall be brought within two years after 1he party seeking contribution has made the final payment in excess of such party’s proportionate share of the claim.
      “(i) This section shall not limit or impair any right of subrogation arising from any other relationship.
      “(j) This section shall not impair any right to indemnity under existing law. Where one tortfeasor is entitled to indemnity from another, the right of the indemnitee is for indemnity and not contribution, and the indemnitor is not entitled to contribution from the indemnitee for any portion of such indemnity obligation.
      “(k) This section shall not apply to breaches of trust or of other fiduciary obligation.
      “(Z) The legal doctrines of last clear chance and assumption of risk in actions to which this section is applicable are abolished.
      “(m) The family car doctrine shall not be applied to impute contributory or comparative negligence pursuant to this section to the owner of any motor vehicle or motor boat.
      “(n) A release, settlement or similar agreement entered into by a claimant and a person discharges that person from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides. However, the total award of damages is reduced by the amount of the released person’s percentage of negligence determined in accordance with subsection (f) of this section.
      “(o) Except as provided in subsection (b) of this section, there shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence including, but not limited to, intentional, wanton or reckless misconduct, strict liability or liability pursuant to any cause of action created by statute, except that liability may be apportioned among parties liable for negligence in any cause of action created by statute based on negligence including, but not limited to, an action for wrongful death pursuant to section 52-555 or an action for injuries caused by a motor vehicle owned by the state pursuant to section 52-556.”

       The trial court noted that, although the defendant had submitted preliminary requests to charge the jury, as had all other parties in accordance with the court’s pretrial orders, the defendant did not include a request to charge on the issue of apportionment. In addition, the trial court stated that prior to impaneling the jury, the court had informed all parties that any requests to charge that they reasonably could anticipate should be submitted at the close of the first day of evidence. Although the parties complied with that instruction, the defendant’s requests did not include a request to charge on apportionment. Therefore, despite Colonial Penn’s submission of a preliminary request to charge the jury on the issue of apportionment, that request was not considered at the charge conference because the plaintiff had withdrawn her claim against Colonial Penn and the defendant had never adopted that apportionment request. The court stated that, despite the fact that the defendant had not formally submitted a request to charge, the court would nevertheless consider the defendant’s memorandum as a motion akin to one in limine because it appeared to be a part of the defendant’s final argument. The trial court reasoned that, “[b]y addressing this issue before counsel addressed the jury, the court will avoid the prospect of having to embarrass counsel in front of the jury by correcting any erroneous statements made by them on this issue during their final arguments, as well as unnecessarily exposing the jury to any precluded issues.” The court, thereafter, concluded that the defendant had failed both procedurally and substantively to sustain his claim that apportionment should occur.

       General Statutes § 52-216a provides in relevant part: “If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial. ...”

       General Statutes § 52-228b provides in relevant part: “No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court. ...”

       See footnote 5 of this opinion for the text of § 52-572h.

       General Statutes § 52-225a (a) provides: “In any civil action, whether in tort or in contract, wherein the claimant seeks to recover damages resulting from (1) personal injury or wrongful death occurring on or after October 1, 1987, or (2) personal injury or wrongful death, arising out of the rendition of professional services by a health care provider, occurring on or after October 1, 1985, and prior to October 1, 1986, if the action was filed on or after October 1, 1987, and wherein liability is admitted or is determined by the trier of fact and damages are awarded to compensate the claimant, the court shall reduce the amount of such award which represents economic damages, as defined in subdivision (1) of subsection (a) of section 52-572h, by an amount equal to the total of amounts determined to have been paid under subsection (b) of this section less the total of amounts determined to have been paid under subsection (c) of this section, except that there shall be no reduction for (1) a collateral source for which a right of subrogation exists and (2) that amount of collateral sources equal to the reduction in the claimant’s economic damages attributable to his percentage of negligence pursuant to section 52-572h.”

       The trial court stated: “This lady won. Not only did she win to get her damages paid, but she got something to put in her pocket besides. . . . [She won] [o]n the theory that the defendant of the two tortfeasors, that is between the defendant . . . and the plaintiff ... if anybody is to be hurt, then [the defendant] is to be hurt. That is the theory upon which she gets a windfall in this case. That is the theory, and that’s why I put it in my brief, in my memorandum.”

         The trial court stated, in its memorandum of decision: “As noted in the statement of the facts, this issue was first raised informally by the [defendant and Colonial Penn] at a late afternoon charge conference. At that time it was anticipated by a.11 remaining parties that final arguments and the jury charge would be given the following morning. Up to this point the plaintiff had no forewarning that [the defendant] was going to demand apportionment between [the defendant and Colonial Penn]. It should also be noted that although Colonial Penn had submitted apreliminary request for an apportionment charge before it exited this case, [tire defendant] neither joined in that request [n]or submitted its own request for such a charge. [The defendant] has yet to make a formal request for such a charge despite the fact that [his] attorney has filed a memorandum urging its use. Finally, had [the defendant] raised this issue in a timely fashion, the plaintiff would have had an opportunity to consider it in terms of its settlement strategy.
      “Therefore, for the reasons and authority indicated, this court declines to permit the issue of apportionment to be inserted into this case at this late date.” (Emphasis in original.)

       Practice Book § 60-5 provides in relevant part: “The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.
      “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”

       We previously have held that “[p]lain error review may be appropriate where consideration of the question is in the interest of public welfare or of justice between the parties.” (Internal quotation marks omitted.) State v. Velasco, 253 Conn. 210, 218-19 n.9, 751 A.2d 800 (2000). Also, we previously have recognized that plain error review is appropriate in matters involving statutory construction because “the interpretation of [a] statute and the resolution of [the] issue does not require further fact-finding . . . .” Connecticut National Bank v. Giacomi, 242 Conn. 17, 39, 699 A.2d 101 (1997); see also Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 38, 664 A.2d 719 (1995) (plain error doctrine invoked “where the record is complete and the question is essentially one of law, so that neither party is prejudiced”). Under those circumstances, the parties are not prejudiced by our review of the underlying claim. State v. Velasco, supra, 218-19 n.9.
      We conclude that the plain error doctrine applies in this case. The record is complete and the issue before this court is strictly a “legal question that requires no finding of facts.” (Internal quotation marks omitted.) Id.; see also Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, 480 n.6, 628 A.2d 946 (1993). “[B]oth parties have had an opportunity to present arguments regarding their proposed statutory interpretation in their appellate briefs.” Westport Taxi Service, Inc. v. Westport Transit District, supra, 235 Conn. 38. Accordingly, neither party is prejudiced by our decision to invoke the plain error doctrine under the circumstances of this case. Furthermore, our invocation of plain error review serves the interests of justice between the parties, and the public welfare.

       In Haynes, we noted that “all references [therein] to ‘underinsured’ motorist coverage encompass[ed] uninsured motorist coverage as well.” Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 21 n.4.

       Our holding in Haynes also was consistent with the dual purposes of underinsured benefits of providing compensation for the victims of underinsured motorists, while simultaneously adhering to the principle that uninsured motorist coverage is “to place the insured in the same position as, but no better position than, the insured would have been had the underinsured tortfeasor been fully insured.” (Emphasis in original.) Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 27; see also Vitti v. Allstate Ins. Co., 245 Conn. 169, 186, 713 A.2d 1269 (1998); Buell v. American Universal Ins. Co., 224 Conn. 766, 775, 621 A.2d 262 (1993); Rydingsword v. Liberty Mutual Ins. Co., 224 Conn. 8, 18, 615 A.2d 1032 (1992); Roy v. Centennial Ins. Co., 171 Conn. 463, 475, 370 A.2d 1011 (1976).

       General S1a1.u1.es § 52-225b provides: “For purposes of sections 52-225a to 52-225c, inclusive: ‘Collateral sources’ means any payments made to the claimant, or on liis behalf, by or pursuant to: (1) Any health or sickness insurance, automobile accident insurance that provides health benefits, and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by him or provided by others; or (2) any contract or agreement of any group, organization, partnership or corporation to provide, pay for or reimburse the costs of hospital, medical, dental or other health care services. ‘Collateral sources’ do not include amounts received by a claimant as a settlement.”

       In essence, the jury's ultimate assessment of liability and percentage of negligence for which each defendant is responsible determines whether the plaintiff made a “good” or “bad” settlement.

       Specifically, § 52-572h (c) provides in relevant part: “In a negligence action to recover damages resulting from personal iryury, [or] wrongful death ... if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party’s proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section.”

       Thus, if on remand the jury determines that t he fair, just and reasonable damages is $86,340, and that the defendant was 100 percent responsible and the unidentified driver was 0 percent responsible, then the defendant would be responsible to pay the entire amount of the jury award. The plaintiff also would keep her previous settlement of $95,000. If, however, the jury determines that the defendant was 25 percent responsible and the unidentified party was 75 percent responsible, then the defendant would be permitted to reduce the award by 75 percent and pay only $21,585. Under either scenario, the plaintiff makes a full recovery of her fair, just and reasonable damages.

       Our decision in the present case is not inconsistent with our decision in Eskin v. Castiglia, supra, 253 Conn. 516. In Eskin, the defendant sought to file an apportionment complaint, pursuant to General Statutes § 52-1021), against an unidentified hit-and-run driver, under a John Doe name. Id., 520-21. We held that the defendant could not file such a complaint for two reasons. First, under § 52-102b, we recognized that there has to be an identifiable person upon whom to serve a complaint. Id., 523-24. Second, we recognized that allowing such a complaint would be contrary to the policy underlying § 52-572h that limits “ 'the universe of negligence’ ” to be considered to identifiable persons. Id., 527. Despite the fact that, in the present case, the unidentified tortfeasor, for whose conduct the plaintiffs uninsured motorist carrier settled, was also a hit-and-run driver, Eskin does not control our decision herein. Because Colonial Penn already was in the case as an original codefendant, the obstacle of § 52-102b is not present Thus, “the universe of negligence” in this case includes the negligence of the unidentified driver because Colonial Penn is acting, in part, as a surrogate. Significantly, we also note that an injured plaintiff may recover money from an uninsured motorist carrier who serves as a surrogate for the unidentified person, unlike where a plaintiff merely had brought an action against an unidentified person as in Eskin.

       General Statutes § 38a-336 (a) (1) provides in relevant part: “Each automobile liability insurance policy shall provide insurance, herein called uninsured and underinsured motorist coverage, in accordance with the regulations adopted pursuant to section 38a-334, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom. . . .”

       Further evidence of the link between the tort law and uninsured motorist benefits is seen regarding the scheme for conversion coverage. General Statutes § 38a-336a (c) provides, as an option, underinsured motorist conversion coverage in lieu of the underinsured motorist coverage as mandated by § 38a-336. Section 38a-336a (e), the statute providing conversion coverage, modifies the definition of “ ‘underinsured motor vehicle’ ” by stating that “a motor vehicle with respect to which the sum of all payments received by or on behalf of the covered person from or on behalf of the tortfeasor are less than the fair, just and reasonable damages of the covered person." (Emphasis added.)

       Section 38a-334-6 of the Regulations of Connecticut State Agencies provides in relevant part: “Minimum provisions for protection against uninsured or underinsured motorists
      “(a) Coverage. The insurer shall undertake to pay on behalf of the insured all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured or underinsured motor vehicle because of bodily injury . . . .”

       We reject, therefore, the contention of the dissent that our reasoning in Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 756 A.2d 237 (2000), compels a different result in the present case. Our conclusion in Allard that § 52-572h (o) does not permit apportionment between a negligent defendant and a defendant liable in product liability; id., 803-804; is not inconsistent with the notion that there nonetheless may be apportionment between a negligent defendant and an uninsured motorist carrier that, for purposes of such apportionment, acts as a surrogate for the negligent uninsured tortfeasor. As we have explained, the fact that the plaintiffs action against her uninsured motorist carrier was based on her contract with that carrier does not preclude the concomitant fact that the legal basis of that contract claim required her to establish the negligence of that uninsured tortfeasor.

       Although Allard involved a defendant that was impleaded as an apportionment defendant and in the present case, Colonial Penn was an original defendant in the action brought by the plaintiff, the principles governing the apportionment issue in both cases are the same as both cases involve a claim for apportionment based on § 52-572h.


author: SULLIVAN, C. J.

text:
    STATE OF CONNECTICUT v. ROBERT W. SPILLANE
    (SC 16215)
    Sullivan, C. J., and Borden, Norcott, Katz, Palmer, Vertefeuille and Zarella, Js.

      Motion decided August 17, 2001

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Rachel Baird, former assistant state’s attorney, for the appellant (state).

      Joel M. Ellis, with whom was Donald E. Weisman, for the appellee (defendant).

       This case was heard initially by Justices Borden, Norcott, Palmer, Sullivan and Vertefeuille. Justices Katz and Zarella were added to the panel to consider the motion for reconsideration and reconsideration en banc. Furthermore, at the time the motion was considered, Justice Sullivan had become chief justice.

   Opinion

SULLIVAN, C. J.

The defendant filed a motion for this court to reconsider the decision it had rendered in the above-captioned matter on April 24, 2001, reversing the judgment of the Appellate Court. See State v. Spillane, 255 Conn. 746, 770 A.2d 898 (2001).

As we stated in State v. Spülane, supra, 255 Conn. 749-51, the jury reasonably could have found the following facts: “The defendant operated Walnut Street Services, Inc., a towing company in Hartford. Walnut Street Services, Inc., was authorized by various area businesses, including Mechanics’ Savings Bank on Farmington Avenue in Hartford, to tow unauthorized vehicles from their lots during nonbusiness hours.

“Around midnight, on April 27, 1996, Webster Lewis parked his car on the street in front of Mechanics’ Savings Bank and entered the apartment of his girlfriend, Andrea Gudealm. [A short time later] Lewis exited the building, [and] discovered his car was missing. Gudealm called the police from a nearby pay telephone, and the police gave her the telephone numbers of several tow companies [to call to find out if the vehicle had been towed]. Upon calling the tow companies, Gudealm located Lewis’ car at Walnut Street Services, Inc. The following afternoon, Lewis proceeded to Walnut Street Services, Inc., and paid the defendant’s wife, Cheryl Spülane, $148 to retrieve his vehicle. Lewis found his glove compartment open, papers scattered around the car and tools missing from the back of the car. Lewis then called the police, and larceny charges were brought against the defendant.

“The defendant was tried on two counts of larceny in the third degree in violation of [General Statutes] § 53a-124 for the wrongful taking of Lewis’ car and his tools respectively, as well as on one count of risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21, as amended by No. 95-142, § 1, of the 1995 Public Acts and one count of reckless endangerment in the second degree in violation of General Statutes § 53a-64 for an incident that occurred on October 1, 1996. At the close of the state’s case, the trial court granted the defendant’s motion for judgment of acquittal of the charge of larceny in the third degree with respect to the tools, and the trial continued on the remaining charges of larceny in the third degree stemming from the taking of Lewis’ vehicle on April 27, 1996, as well as risk of injury to a child and reckless endangerment in the second degree, both stemming from the October 1, 1996 incident.

“Much of the trial testimony addressed where Lewis’ car had been parked when it was towed. If it had been parked in the Mechanics’ Savings Bank parking lot, Walnut Street Services, Inc., rightfully towed the vehicle. If, however, it had been parked on the street, as the state claimed, then Walnut Street Services, Inc., wrongfully towed the vehicle. In accordance with Lewis’ testimony, the jury found the tow to have been wrongful and, on March 20, 1997, found the defendant guilty of larceny in the third degree. The defendant was found not guilty of the charges of reckless endangerment in the second degree and risk of injury to a child. The defendant was sentenced on May 2, 1997, to a two year suspended sentence and three years probation. He was also ordered to pay Lewis restitution in the amount of $200, participate in an anger management program, and donate $1000 to the Hartford police department outreach program.” Id.

The defendant appealed from the judgment of conviction to the Appellate Court, which reversed the judgment of the trial court. State v. Spillane, 54 Conn. App. 201, 203, 737 A.2d 479 (1999). “The Appellate Court determined that the trial court improperly omitted the definition of the term ‘appropriate’ set forth in [General Statutes] § 53a-118 (a) (4) (B) from its instruction to the jury on the elements of larceny. . . . The Appellate Court also found that it was reasonably possible that the jury was misled by the trial court’s instruction and, therefore, ordered a new trial. . . . We granted the state’s petition for certification to appeal, limited to the following issues: (1) ‘Did the Appellate Court properly conclude that the trial court’s instructions regarding “appropriate” were constitutionally inadequate?’ and (2) ‘If the answer to the first question is “yes” was the error harmful?’ ” (Citations omitted.) State v. Spillane, supra, 255 Conn. 748-49. We held that although the trial court should have given the jury the statutory definition of “appropriate,” the failure to do so was harmless, and we, therefore, reversed the judgment of the Appellate Court. Id, 756-59, 762.

In State v. Spillane, supra, 255 Conn. 760-61, we declined to address the defendant’s claim that the waiver rule is unconstitutional, or his claim that there was insufficient evidence to support a judgment of guilty of larceny in the third degree, because the defendant had not provided us with a complete record, including all of the trial transcripts. Thereafter, the defendant filed a motion for reconsideration and reconsideration en banc of his claims regarding the sufficiency of the evidence, the waiver rule, and the adequacy of the jury instructions. We granted the motion as to reconsideration of the sufficiency of the evidence claim only. The defendant presents us with no reason why we should reevaluate our holding that the jury instructions were adequate, and we will not revisit, that issue in this opinion. Furthermore, because we conclude that the evidence in the state’s case-in-chief was sufficient to support the judgment of guilty of larceny in the third degree, we need not review the waiver rule. See State v. Calonico, 256 Conn. 135, 139, 770 A.2d 454 (2001).

The defendant claims that, in order to show that the evidence was sufficient, it was the state’s responsibility to provide the remaining transcripts and thus complete the record. The defendant, citing in particular, General Electric Supply Co. v. Southern New England Telephone Co., 185 Conn. 583, 441 A.2d 581 (1981), and Engelke v. Wheatley, 148 Conn. 398, 171 A.2d 402 (1961), claims that it was the responsibility of the state to provide the missing transcripts because the state was suggesting that the evidence was sufficient.

In General Electric Supply Co. v. Southern New England Telephone Co., supra, 185 Conn. 602, the plaintiff argued “that the defendants may not on an appeal urge that a finding or conclusion is unsupported by the evidence without including in our record a transcript of the proceedings in the trial court.” This court, acknowledging that no such transcript had been filed by either party, noted that “[n]either our statutes nor our rules of practice expressly require the filing of a transcript as a condition to the perfection of an appeal. ... In our rules, the closest analogy is found in relation to claims that a verdict should have been set aside, when a party asserting the absence of supporting evidence is permitted to state that claim in his brief and submit no evidence .... Practice Book § 3060U.” (Citation omitted; internal quotation marks omitted.) Id., 602-603. We held that “when the appellant puts into issue the sufficiency of the evidence to support a finding of fact by the trial court, our present rules permit the appellant to impose upon the appellee the burden of producing the evidence that is necessary for a decision by this court.” Id., 603. In 1986, § 3060U was transferred to § 4077 of the Practice Book. Section 4077 was repealed, effective September 3, 1996.

Similarly, in Engelke v. Wheatley, supra, 148 Conn. 411, we noted both that the defendant “attacked, as found without evidence, findings as to certain elements of damage in the case of three of the plaintiffs,” and also “that the plaintiffs failed to include in their appendix any evidence supporting these findings.” Citing what were then §§ 447 and 448 of the 1951 Practice Book, we held: “Under our rule, this requires that they be stricken. . . . When an appellant assigns as error, and makes the claim in his brief, that a material fact was found without evidence, and does not print the relevant evidence, the burden of printing evidence to show that no error was committed is, under the rule, placed on the appellee. The rule in effect relieves the appellant of the burden, with regard to such an assignment, of showing that there was error, even though logically he should have this burden.” (Citations omitted.) Id. Sections 447 and 448, after being revised and renumbered over the years, eventually were repealed.

In addition to relying on sections of the Practice Book that have since been repealed, both General Electric Supply Co. and Engelke predate the current version of Practice Book § 61-10. Before the adoption of § 61-10, an appellant who claimed that a material fact was found at trial without any evidence was not required to provide the reviewing court with any evidence. If the appellee then failed to provide evidence in response, the appellant prevailed. Section 61-10 requires, however, that the appellant provide an adequate record for review. The combination of the repeal of the sections of the Practice Book relied upon in General Electric Supply Co. and Engelke, and the adoption of Practice Book § 61-10, implicitly overruled those cases. We hereby explicitly overrule General Electric Supply Co. v. Southern New England Telephone Co., supra, 185 Conn. 583, and Engelke v. Wheatley, supra, 148 Conn. 398, insofar as they are inconsistent with this opinion.

Because we previously have not overruled these cases explicitly, we will examine the defendant’s claim that the state, in its case-in-chief, failed to present sufficient evidence to sustain a conviction of larceny in the third degree. In order for the evidence to have been sufficient in this case, the jury must have been able to find that the defendant (1) intended to dispose of Lewis’ vehicle for his own benefit, and (2) wrongfully took, obtained or withheld the motor vehicle from Lewis. See footnote 6 of this opinion and General Statutes §§ 53a-119, 53a-124 (a).

At trial, Lewis testified for the state as follows. He had parked his car on the street, not in a private lot. When he came out of Gudealm’s apartment, his car was missing. When Gudeaim called the police, they said that they had not had the car towed, and they gave Gudeaim the telephone numbers for various tow companies. A telephone call to Walnut Street Services, Inc., revealed that the car had been towed there, but that Lewis could not pick up the car until around noon the following day. Upon arriving at Walnut Street Services, Inc., the following afternoon, Lewis was told by the defendant’s wife that he would have to give her $ 148 in exact change to get his car back. When Lewis gave her the money, the defendant’s wife put the guard dogs away in order to permit Lewis to approach his vehicle.

Officer Albert DiStefano of the Hartford police department testified for the state that if Lewis had parked on the street, Walnut Street Services, Inc., would not have been authorized to tow Lewis’ vehicle, even if he had been parked in a tow zone, unless the police had first issued a ticket. No ticket had been issued for Lewis’ vehicle. Lewis gave DiStefano a sworn statement that his car had been parked on the street, not in the private lot. DiStefano went to Walnut Street Services, Inc., and spoke with the defendant’s wife. He asked her to get her husband on the telephone because he had towed the vehicle. When the defendant refused to come to Walnut Street Services, Inc., to talk to DiStefano directly, DiStefano informed the defendant that he was considering filing larceny charges against him.

From the testimony of Lewis and DiStefano, the jury reasonably could have found that the defendant intended to dispose of Lewis’ vehicle by towing it to Walnut Street Services, Inc. The jury also reasonably could have found that the defendant towed the vehicle in order to obtain the $148 benefit. Relying on the testimony of Lewis and Gudealm that Lewis had parked his vehicle on the street, combined with DiStefano’s testimony that no ticket had been issued for a parking violation and that, therefore, the defendant was not authorized to tow the vehicle, the jury could have concluded that the taking was wrongful.

The motion for reconsideration is granted but the relief requested is denied; reconsideration en banc is denied.

In this opinion the other justices concurred.

       General Statutes § 53a-124 (a) provides in relevant part: “A person is guilty oí larceny in the third degree when he commits larceny, as defined in section 53a-119, and: (1) The property consists of a motor vehicle, the value of which is five thousand dollars or less . . .

       General Statutes (Rev. to 1995) § 53-21, as amended by No. 95-142, § 1, of the 1995 Public Acts, provides in relevant part: '‘Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, [or] the health of such child is likely to be injured . . . shall be guilty of a class C felony.”

       General Statutes § 53a-64 (a) provides: “A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a risk of physical injury to another person.”

       “A private tow company may tow a vehicle parked on a public street only if it has been ticketed by the police. The police had not issued a ticket in this case.” State v. Spillane, supra, 255 Conn. 751 n.6.

       “[General Statutes §] 53a-119 sets forth two different types of intent that may be established to prove larceny: when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . . Either intent to deprive or intent to appropriate must be found to convict a defendant of larceny. The state proceeded on a theory that the defendant here intended to appropriate Lewis’ vehicle.” (Internal quotation marks omitted.) State v. Spillane, supra, 255 Conn. 751. “[General Statutes §] 53a-118 (a) (4) defines ‘appropriate’ as follows: ‘(A) to exercise control over [the property], or to aid a third person to exercise control over it, permanently or for so extended a period or under such circumsl anees as to acquire the major portion of its economic value or benefit, or (B) to dispose of the property for the benefit of oneself or a third person.’ . . . [T]ho state was proceeding under the definition provided in subparagraph (B). The state did not claim that the defendant intended to keep the vehicle, but rather that the vehicle was improperly towed so that the defendant’s company could collect the 8148 benefit.
      “Unlike subparagraph (A), subparagraph (B) contains no permanency element. Accordingly, the trial court acted properly in not instructing the jury on that term.’’ State v. Spillane, supra, 255 Conn. 761.

       “Under the waiver rule, when a motion for acquittal at the close of the slate’s case is denied, a defendant, may not secure appellate review of the trial court’s ruling without [forgoing] the right to put on evidence in his or her own behalf. The defendant’s sole remedy is to remain silent and, if convicted, to seek reversal of the conviction because of insufficiency of the state’s evidence. If the defendant elects to introduce evidence, the appellate review encompasses the evidence in toto. The defendant then runs the risk that the testimony of defense witnesses will fill an evidentiary gap in the state’s case.” State v. Rutan, 194 Conn. 438, 440, 479 A.2d 1209 (1984).

       At the time in question, 1981, Practice Book § 3060U provided: “If a party claims error in a decision of the trial court on a motion to set aside a verdict or on a motion under Sec. 321 for a judgment notwithstanding the verdict or notwithstanding the failure of the jury to return a verdict on the ground that there was no evidence to support the verdict, decision or claim of the adverse party in an essential particular, he may either state that claim in his brief and submit no evidence or he may submit all relevant evidence; but if he adopts the first alternative or if the evidence he submits does not fairly present the issue, the supreme court, in addition to any other appropriate order, and whether or not he prevails on the appeal, may direct him to pay to the adverse party so much of the expense incurred by the adverse party in the procuring and submission of evidence as is unjustifiably caused thereby.”

       Practice Book (1951) § 447 provided: “Except as provided in Sec. 415, any portion of a transcript of evidence on file which a party desires to present to the court shall be printed, and only printed, in an appendix to the brief. Only evidence material to the issues shall be printed.
      “If a party claims that a fact should be found on the ground that it is material and either admitted or undisputed, the evidence or transcript of proceedings upon which (he claim is based should be printed.
      “If a party claims error in a decision of the trial court on a motion to set aside a verdict or for a judgment notwithstanding the verdict or where no verdict was returned on the ground that there was no evidence to support the verdict, decision or claim of the adverse party in an essential particular, or if a party claims that the trial court found a material fact without evidence, he may either state that claim in his brief and print no evidence or he may print all relevant evidence; but if he adopts the first alternative or if the evidence he prints does not fairly present the issue to this court and he prevails on the appeal, this court may order that the expense of the procuring and printing of evidence by the adverse party unjustifiably caused thereby shall be set-off against the costs to which 1 he former, as the prevailing party, would otherwise be entitled.”

       Practice Book (1951) § 448 provided: “Wherever possible, evidence should be stated in narrative form. If either party disagrees with such a statement made by the other, he should so state in his brief and print in the appendix any evidence on which he relies to support his contention. Unnecessary and repetitious printing of testimony is to be avoided and arguments and colloquies of counsel should be omitted. Wherever it is possible, counsel should agree upon a joint appendix which the appellant shall print at his expense in connection with his brief; and if this is done the parties shall file with the clerk of this court in the county where the case was tried a stipulation so stating.
      “The testimony printed in the appendices will be deemed to embrace all testimony produced at the trial material to the issues on the appeal, although this court may, if sufficient cause appears, consult the transcript of evidence on file to supplement or explain that printed.”

       Practice Book (1951) § 447 was incorporated into §§ 716, 717 and 718 of the 1963 Practice Book. Sections 716 and 717 became, respectively, §§ 3044 and 3045, and § 718 became §§ 3046 and 3059, in the 1978 Practice Book. Sections 3044, 3045 and 3046 were repealed, effective July 1, 1979. Section 3059 was incorporated into § 3060U as of July 1,1979. Section 3060U then became § 4077 in 1986 and later was repealed, effective September 3, 1996.
      Practice Book (1951) § 448 became §§ 720 and 721 of the 1963 Practice Book, which in turn became, respectively, §§ 3048 and 3049 of the 1978 Practice Book. Sections 3048 and 3049 were incorporated into §§ 3060Q and 3060R in 1979. Sections 3060Q and 3060R then became §§ 4073 and 4074 in 1986 and were repealed in 1996.

       Practice Book § 61-10 provides: “It is the responsibility of the appellant to provide an adequate record for review. The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. For purposes of this section, the term ‘record’ is not limited to its meaning pursuant to Section 63-4 (a) (2), but includes all trial court decisions, documents and exhibits necessary and appropriate for appellate review of any claimed impropriety.”

       Lewis’ girlfriend, Gudeaim, also testified for the state that Lewis had parked his car on the street.

       Katz and Zarella, Js., join in the opinion insofar as it disposes of the defendant’s motion for reconsideration en banc.