text:
    Keystone Insurance Company v. Dean Raffile
    (14479)
    Peters, C. J., Borden, Norcott, Katz and F. X. Hennessy, Js.
    Argued December 8, 1992
    decision released March 30, 1993

      William F. Gallagher, for the appellant (defendant).

      Thomas H. Blair III, with whom was Francis J. Wynne, for the appellee (plaintiff).
   Norcott, J.

The dispositive issue in this appeal is whether an individual claiming to be injured in a one car, force and rim accident must provide independent corroborative evidence of the accident in order to recover uninsured motorist benefits from his insurance carrier. The plaintiff, Keystone Insurance Company, moved in the trial court to vacate an arbitration award made to the defendant, Dean Raffile, because the defendant had not proved his claim of a force and run accident by corroborative evidence. The trial court vacated the arbitration award, concluding that our decision in Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 593 A.2d 498 (1991), required the defendant to provide corroborative evidence of his version of the accident and that the defendant had failed to satisfy that requirement. The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We now reverse.

The following facts are relevant to this appeal. On September 3,1986, the defendant was severely injured in a one car accident in North Haven after his vehicle swerved off the road into a utility pole. The defendant lost consciousness after the impact and awoke in the emergency room of Yale-New Haven Hospital. The defendant was hospitalized until October 7,1986. During that time, he underwent seven operations to correct a fracture of the neck, and wore a halo brace bolted into his head for ten days to provide traction until surgery could be performed. The testimony of the defendant and his wife, as well as hospital records, revealed that the defendant was in extreme pain and was severely distressed about his treatment, displaying volatile emotions, disorientation and lack of coherence and rationality. After his release from the hospital, the defendant went to Florida until March, 1987, to stay with his parents while he recuperated.

The defendant’s wife, Lucille Raffile, did not discuss the details of the accident with the defendant while he was hospitalized because he did not appear to be coherent or rational. On the morning after the accident, she called the plaintiff to report the accident and stated that the defendant had fallen asleep behind the wheel and had hit a tree or a telephone pole. Ten days later she submitted a no-fault benefits application to the plaintiff and described the accident similarly.

On August 29, 1988, the defendant made an uninsured motorist claim against the plaintiff, claiming that an unknown vehicle that had entered the road in front of the defendant’s vehicle had caused him to swerve and to strike the utility pole. The plaintiff contested this claim and the matter was ultimately submitted to arbitration. A panel of three arbitrators heard the case on divers days between December, 1989, and September, 1991. The principal issue was whether the defendant was entitled to coverage because of the absence of contact between the unidentified vehicle and the defendant’s vehicle. Because this court was about to decide the requirement of contact in an uninsured motorist claim in Streitwieser v. Middlesex Mutual Assurance Co., supra, the arbitration panel postponed briefs and oral argument until that decision was issued.

The defendant testified to the arbitration panel that, during the third week after his second operation, he had recalled that he had been run off the road by a yellow station wagon that had pulled out of a private driveway in front of him. The defendant had relayed this information to his brother, Arthur Raffile, a North Haven policeman, the day after the accident. The defendant’s brother testified that he had independently investigated the accident on the basis of what the defendant had told him. The investigating officers told the defendant’s brother that no one had smelled liquor on the defendant’s breath the night of the accident and that no motor vehicle citation had been issued to the defendant after the accident. The defendant’s brother also testified that he had completed the motor vehicle accident report for the defendant, which reflected that an unidentified vehicle had been the cause of the accident.

The defendant’s wife testified at the arbitration hearing that during the defendant’s hospitalization he had made references to headlights and a car, but that she had not taken the matter seriously. She also testified that she had not discussed the details of the accident with the defendant until he had returned from Florida in March, 1987, and that she had not reported this new information to the plaintiff because she thought the defendant had done so. An expert accident reconstructionist introduced by the defendant testified that, in light of the defendant’s version of the accident, the police report and his own investigation, it was reasonable for the defendant to have failed to see the other vehicle and that the defendant’s evasive action had been reasonable.

The police accident report noted that no skid marks were found in the area of the accident and that there were no witnesses to the accident. An expert for the plaintiff testified that the defendant’s serum blood alcohol level, as taken from the hospital records, equated to approximately 0.15% to 0.24% of body weight. The defendant admitted to having consumed approximately one bottle of wine on the night of the accident between 6 p.m. and 12:30 a.m.

A majority of the arbitrators found for the defendant on the issue of liability and assessed his damages at $450,000. The majority of the panel also attributed 50 percent comparative negligence to the defendant and, accordingly, reduced his award by that percentage plus $16,600 for basic reparations benefits already paid. The net award to the defendant, therefore, totaled $208,400.

The plaintiff subsequently applied to vacate the arbitrators’ award pursuant to General Statutes § 52-418 on the grounds that: (1) the award contravened public policy because the defendant had failed to prove his claim of a force and run accident by independent corroborative evidence; (2) the award was arbitrary and contrary to law because the majority of arbitrators either had failed to apply or had misapplied the corroboration requirement; and (3) the defendant had failed to meet the requirements of his insurance contract by failing to notify the police of the force and run driver.

The trial court granted the plaintiff’s application to vacate the award. The trial court reasoned that our decision in Streitweiser required the defendant to provide corroborative evidence of his version of the accident and that, because all the testimony presented emanated from the defendant’s representations, the defendant had failed to provide such corroborative evidence.

The defendant contends on appeal that the trial court improperly interpreted our decision in Streitweiser to require a claimant to supply independent corroborative evidence that a force and run accident occurred in order to recover uninsured motorist benefits for injuries resulting from a force and run accident. The defendant argues that this court did not set a standard requiring corroborative evidence to prove force and run accidents in Streitweiser, and that a claimant’s burden of proof by a preponderance of the evidence provides sufficient assurance against the risk of fraudulent claims. We conclude that there is no legal requirement for independent corroborative evidence of claims involving force and run accidents.

In Streitweiser, we held that a physical contact requirement, if an unidentified vehicle causes the claimant’s accident, is inconsistent with the public policy underlying statutorily mandated uninsured motorist coverage. Id., 381. In so deciding, we joined a host of other jurisdictions that had similarly reasoned that a physical contact requirement is “an unjustifiable deviation from the legislative goals of uninsured motorist legislation.” Id. We did note in dictum, however, that the concern that the absence of a physical contact requirement would encourage fraudulent claims was legitimate. Therefore, we stated that “some standard of corroboration to support a claimant’s contention that the injuries for which compensation is sought were indeed caused by a hit-and-run motorist” might be appropriate. (Internal quotation marks omitted.) Id., 382-83. We also recognized our authority, even in the absence of a statutory foundation, to “require a claimant, if he is put to his proof, to present some evidence to corroborate his representation of how the accident occurred.” Id., 383.

In Streitweiser, however, we expressly did not impose a requirement of corroborative evidence for noncontact uninsured motorist claims because the parties in that case had stipulated to the existence of a causal relationship between the plaintiff’s injuries and the unidentified vehicle. Id. We therefore neither reached the issue of whether corroborative evidence would be required nor established such a requirement as a matter of law. The issue that we left unresolved in Streitweiser, namely, whether a claimant is required to present some evidence to corroborate his representation of a force and run accident, is squarely before us today.

To begin our analysis, we recognize the valid concerns of insurance companies regarding the potential for fraudulent claims in cases involving an unidentified tortfeasor. We acknowledged this concern in Streit weiser when we stated: “In the absence of physical contact, there is a risk that a claimant may conjure up a phantom motorist to explain a one-car accident for which the claimant was in fact entirely responsible.” Id., 382. Indeed, some jurisdictions that have rejected a physical contact requirement now oblige a claimant to support his allegations of a phantom driver with some corroborative evidence of the accident. See, e.g., Rogers v. Schuman-Mann Supply Co., 197 Ga. App. 59, 397 S.E.2d 463 (1990); Marakis v. State Farm Fire & Casualty Co., 765 P.2d 882, 885 (Utah 1988); Gobin v. Allstate Ins. Co., 54 Wash. App. 269, 271, 773 P.2d 131 (1989). Also, some states have an expressed corroboration requirement in the governing statute. See, e.g., 24 Ga. Code Ann. § 33-7-11 (b) (2) (1992); 49 Or. Rev. Stat. Ann. § 743.792 (g) (B) (1989); Utah Code Ann. § 31A-22-305 (5) (1991); 5 Wash. Rev. Code § 48.22.030 (8) (a) (1992).

Other jurisdictions, however, have rejected both a physical contact and a corroboration requirement as contrary to public policy and untenably contrary to the legislative purpose behind uninsured motorist statutes. See Lanzo v. State Farm Mutual Auto Ins. Co., 524 A.2d 47, 50 (Me. 1987); Perez v. American Bankers Ins. Co., 81 N. J. 415, 419, 409 A.2d 269 (1979) (imposition of the requirement of corroboration in noncontact cases adds a substantial condition to the mandated coverage not sanctioned by the legislature); Pin Pin H. Su v. Kemper Ins. Cos./ American Motorists Ins. Co., 431 A.2d 416, 419 (R.I. 1981). These jurisdictions burden the claimant with the same evidentiary standard of proof as in traditional civil actions. We choose to join this latter group.

At the outset, we note that neither our uninsured motorist statute; General Statutes § 38a-336; the pertinent regulations, nor the defendant’s insurance policy mentions or requires corroborative evidence to support a force and run, uninsured motorist claim. It is well established that the public policy derived from the uninsured motorist legislation is that “ ‘every insured is entitled to recover for the damages he or she would have been able to recover if the uninsured motorist had maintained a policy of liability insurance. Insurance companies are powerless to restrict the broad coverage mandated by the statute.’ Harvey v. Travelers Indemnity Co., 188 Conn. 245, 249, 449 A.2d 157 (1982).” Streitweiser v. Middlesex Mutual Assurance Co., supra, 377. The public policy embodied in our uninsured motorist legislation “ ‘favors indemnification of accident victims unless they are responsible for the accident.’ Widiss, A Guide to Uninsured Motorist Coverage (1969) § 2.9, p. 29.” Harvey v. Travelers Indemnity Co., supra, 250. Therefore, any limitation on the ability of an individual injured by an uninsured motorist to recover benefits for his injuries will have to bear close scrutiny.

We also recognize, however, that the uninsured motorist legislation is designed for the truly innocent and not for the fraudulent policyholder. In determining whether a corroboration requirement is necessary in force and run accidents we must, therefore, balance: (1) the prominent public policy favoring uninsured motorist coverage; (2) the potential for a flood of fraudulent claims; and (3) the potential loss of valid claims that cannot be corroborated by evidence independent of the claimant’s version of the facts. In weighing these concerns, we conclude that the scale must tip in favor of the claimant and that a standard requiring corroborative evidence independent of the claimant’s testimony is not warranted.

The plaintiff argues that allowing a claimant to recover in cases where there are no witnesses and no physical contact, without requiring corroboration, creates a situation that is ripe for fraud. The specter of fraudulent claims, however, should not be determinative of this issue. The fact that some claims might be manufactured by unscrupulous individuals cannot justify the wholesale rejection of all claims in which injury is caused by an unidentified driver simply because the injured party lacks third party witnesses or physical evidence of an unidentified driver.

Indeed, the potential for fraudulent claims was also at issue when the physical contact requirement was eliminated in many jurisdictions. For instance, in rejecting an argument that concern for fraud supports the need for a physical contact requirement, the Supreme Court of Hawaii reasoned as follows: “A claimant with a fraudulent claim can bolster the same, if necessary, by damaging his own car to leave apparent proof of the requisite ‘physical contact’ with a non-existent ‘unidentified vehicle.’ The contractual ‘physical impact’ requirement thus not only sweeps too broadly, but also not broadly enough, to accomplish its only justifiable and statutorily permissible purpose, the prevention of frauds.” DeMello v. First Ins. Co. of Hawaii, Ltd., 55 Haw. 519, 529, 523 P.2d 304 (1974). Similarly, a corroboration requirement would accomplish little to prevent fraud if a claimant, so inclined, would bolster his fraudulent claim with sham “eyewitnesses” or manufactured corroborative evidence.

The lack of a corroboration requirement, like the elimination of a physical contact requirement, does not mean that the claimant no longer carries the burden of proving by a preponderance of the evidence that the accident occurred as claimed. In discussing its rejection of the physical contact requirement, the Utah Supreme Court wrote: “Apparently, the sole justification for the physical contact requirement is its alleged evidentiary value in providing objective evidence which corroborates the victim’s account of the accident. However, its rejection does not relieve the insured’s burden of proving his or her case. If the insured can prove to the satisfaction of the fact finder that the accident occurred, he or she may be entitled to recover regardless of the actuality of physical contact.” Marakis v. State Farm Fire & Casualty Co., supra, 884-85. Likewise, whether a force and run accident occurred as the claimant asserts, despite the absence of corroborative evidence, is a pure question of fact to be determined by the trier. Cf. Brown v. Progressive Mutual Ins. Co., 249 So. 2d 429, 430 (Fla. 1971).

The claimant will satisfy his or her burden of proof if the evidence induces in the mind of the trier a reasonable belief that it is more probable than not that the accident occurred in the manner in which the claimant asserts. C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 4.4.1 (a). The claimant’s evidence need not negate all other possibilities or exclude every other reasonable conclusion. Terminal Taxi Co. v. Flynn, 156 Conn. 313, 318, 240 A.2d 881 (1968). Admittedly, in a case such as the one presently before us, the evidence might be scarce. There may be no eyewitness, the physical evidence at the accident scene may evince nothing more than the fact that an accident occurred, and an accident reconstructionist may only be able to give an expert opinion primarily based on the claimant’s own account of the accident. The paucity of evidence, however, should not defeat the claimant’s right to persuade the trier that his claim is valid.

If the extent of a claimant’s evidence is his or her account of how the accident occurred, then the claimant’s credibility will be tested and evaluated by the trier of fact as in any civil action. “The credibility of a witness is a matter for the jury and, except in rare instances, there is no requirement that a witness’s testimony be corroborated by other evidence.” C. Tait & J. LaPlante, supra, § 7.30.1. The absence of corroboration, of course, may affect the trier’s decision as to the sufficiency of the evidence and the burden of proof; C. Tait & J. LaPlante, supra; but this factor goes to the weight of the claimant’s case rather than to his or her ability to bring the case before the trier. We see no reason why the traditional tests of credibility, testimony under oath and cross-examination, coupled with the claimant’s burden of proof, are insufficient to provide protection against fraudulent claims.

Where the traditional tests of credibility attend to an insured’s claim for coverage, a rigid corroboration rule works too harshly on some of those whom the broad remedial purpose of the uninsured motorist legislation is to benefit in the first place. We conclude, therefore, that a claimant alleging that an accident was caused by an unidentified vehicle, even in the absence of physical contact, need not present independent evidence to corroborate how the accident occurred.

The plaintiff argues as an alternative ground to support the trial court’s decision that, even if we reject a corroboration requirement, the burden of proof on a claimant should be “clear and convincing evidence” to assure that only valid claims are compensated. The plaintiff argues that because a “clear and convincing evidence” standard is required to prove fraud; Alaimo v. Royer, 188 Conn. 36, 39, 448 A.2d 207 (1982); the same standard is also appropriate here because of the potential for fraudulent claims. In essence, the plaintiff is urging us to adopt a standard that would put any claimant under circumstances similar to those of the defendant in the position of disproving fraud, regardless of whether fraud is asserted by the insurer as a defense. This we refuse to do.

We recently rejected the invitation to establish a “clear and convincing” evidence standard to prove the special defense of concealment or misrepresentation in a claim for coverage under an insurance contract. Rego v. Connecticut Ins. Placement Facility, 219 Conn. 339, 344, 593 A.2d 491 (1991). We noted in Rego that the elevated standard of proof applied “solely to claims of common law fraud, the elements of which are distinct from an insurer’s defense of concealment or misrepresentation.” Id. We fail to see the logic in requiring a claimant to prove his claim by a higher standard of proof than preponderance of the evidence because of the potential for fraud, whether or not alleged, when an insurer alleging concealment or misrepresentation as a defense would not be subject to that same standard. Elevating the standard of proof in noncontact uninsured motorist cases would not only expand the standard for fraud to any situation in which there is the potential for fraud, but would be contrary to the public policy behind the uninsured motorist legislation.

We conclude that the burden of proving by a preponderance of the evidence that an accident occurred because of an unidentified vehicle provides sufficient assurance of the validity of the claimant’s allegations. This standard adequately addresses the concern for fraud while at the same time maintaining the remedial purposes of our uninsured motorist statutes.

We conclude that the trial court improperly granted the plaintiff’s motion to vacate the arbitration award because of the defendant’s failure to provide independent corroborative evidence of an unidentified vehicle causing the accident. Having reviewed the record, we further conclude that without the need for corroborative evidence, there was a substantial basis in the evidence to confirm the arbitrators’ award. See Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 660, 591 A.2d 101 (1991); Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 593, 590 A.2d 447 (1991).

The judgment is reversed and the case is remanded with direction to render judgment confirming the arbitrators’ award.

In this opinion the other justices concurred.

       A force and run accident is one in which an unidentified vehicle forces the driver of another vehicle into an accident without making contact with that other vehicle.

       The defendant’s wife testified before the arbitration panel that her impression that the defendant had fallen asleep at the wheel may have come from a newspaper account of the accident published that same morning.

       The plaintiff s policies in effect at the time of the accident included within the definition of an “uninsured motor vehicle” a motor vehicle “[wjhich is a hit and run vehicle whose operator or owner cannot be identified and which hits . . . you or any ‘family member’ . . . .”

       The defendant testified before the arbitration panel: “[A]s I came around the curve, from out of a dirt driveway came a yellow 1975 or 1976 Pontiac or Chevrolet station wagon; I had a choice to get out of the way or try to swerve around him, and when I did, I saw a telephone pole, and I dived [sic] to the floor of my car and broke my neck and scarred up my face and broke my shoulder.” The defendant also testified that he did not report this to investigating officers because they did not come to see him and he could not see them because of his condition.

       The defendant apparently did not recall telling his brother how the accident had occurred because he testified that his first recollection of the accident was several weeks later.

       Evidence had been introduced that the defendant had consumed approximately a full bottle of wine on the night of the accident between 6 p.m. and 12:30 a.m. The defendant’s brother testified that routine police procedure would be to obtain a warrant for an individual’s medical records if liquor is detected on a driver’s breath after a serious accident, which was not done with respect to the defendant. The defendant’s brother also testified that if no other car had been involved in the accident there might have been a motor vehicle violation on the part of the defendant, but that the defendant was never charged with one after the accident.

       The motor vehicle accident report reflected in pertinent part: “[The] unknown vehicle entered the road from the right out of a private drive. To avoid colliding with the unknown vehicle, vehicle #1 [the defendant’s] cut into the left lane on the curve and struck a utility pole on the left shoulder of the roadway.”

       One arbitrator dissented, finding that there was insufficient proof to sustain the existence of a phantom car.

       The plaintiff had issued a policy to the defendant covering three vehicles at $100,000 each. The parties stipulated that this policy was in effect at the time of the accident and that the aggregate uninsured motorist coverage amounted to $300,000.

       “[General Statutes] Sec. 52-418. vacating award, (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.
      “(b) If an award is vacated and the time within which the award is required to be rendered has not expired, the court or judge may direct a rehearing by the arbitrators.
      "(c) Any party filing an application pursuant to subsection (a) of this section concerning an arbitration award issued by the state board of mediation and arbitration shall notify said board and the attorney general, in writing, of such filing within five days of the date of filing.”

       The defendant, in response, filed a motion to confirm the arbitration award pursuant to General Statutes § 52-417, which provides: “At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, to any judge thereof, for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.” Both motions were heard by the trial court on October 28, 1991, and the defendant’s motion was denied on November 6, 1991.

       The defendant also argues that the trial court improperly: (1) determined that the defendant had caused his own injuries because there was substantial evidence to confirm the arbitrators’ award; and (2) determined that the defendant had failed to corroborate his claim. Because we agree with the defendant that the trial court improperly read Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 593 A.2d 498 (1991), to require corroborative evidence to collect uninsured motorist benefits in a force and run accident, we do not directly address these remaining claims.

       See Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 381-82, 593 A.2d 498 (1991), for a comprehensive list of the jurisdictions that have either rejected or accepted the physical contact requirement.

       General Statutes § 38a-336, formerly § 38-175c, provides in pertinent part: “uninsured motorist coverage, (a) (1) Each automobile liability insurance policy shall provide insurance, herein called uninsured 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. Bach insurer licensed to write automobile liability insurance in this state shall provide uninsured motorists coverage with limits requested by the named insured upon payment of the appropriate premium, but the insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily injury coverage of the policy issued to the named insured. No insurer shall be required to provide uninsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured, or (B) to any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured.”

       The Regulations of Connecticut State Agencies, § 38a-334-6, formerly § 38-175a-6, provides in pertinent part: “minimum PROVISION FOR PROTECTION AGAINST UNINSURED 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 motor vehicle because of bodily injury sustained by the insured caused by an accident involving the uninsured motor vehicle. This coverage shall insure the occupants of every motor vehicle to which the bodily injury liability coverage applies. ‘Uninsured motor vehicle’ includes a motor vehicle insured against liability by an insurer that is or becomes insolvent.”

       Indeed, in Connecticut jurisprudence we find several instances where corroborating evidence is specifically not required. See Public Acts 1974, No. 74-131, repealing General Statutes § 53a-68 (testimony of the alleged victim of a sex offense need not be corroborated to sustain a conviction); Jarrett v. Jarrett, 151 Conn. 180, 182, 195 A.2d 430 (1963) (“if a ground for divorce has been clearly established, a party is not precluded from a judgment dissolving the marriage by reason of the fact that his evidence lacked corroboration by other witnesses”); In re Robert K., 12 Conn. App. 585, 589-90, 532 A.2d 1319 (1987) (uncorroborated testimony of a child abuse victim is sufficient).


source: Caselaw Access Project

author: Borden, J. Berdon, J.,

license: Public Domain

text:
    Arthur L. Robbins v. John C. Van Gilder et al.
    (14453)
    (14454)
    (14455)
    Callahan, Borden, Berdon, Katz and F. X. Hennessy, Js.
    Argued December 10, 1992
    decision released March 30, 1993

      George A. Silvestri III, with whom, on the brief, was Edward J. Daly, Jr., for the appellants in Docket No. 14453, appellees in Docket Nos. 14454 and 14455 (named defendant et al.).

      Richard L. Albrecht, with whom were Ellen Wisser and, on the brief, Joram Hirsch and Scott A. Hurwitz, for the appellant in Docket No. 14454, appellee in Docket Nos. 14453 and 14455 (plaintiff).

      Edward Maum, Sheehy, for the appellant in Docket No. 14455, appellee in Docket No. 14454 (defendant Yale-New Haven Hospital).
   Borden, J.

The dispositive issue in these three appeals is whether, under the circumstances of the trial court proceedings, there is a final judgment for purposes of appeal. We conclude that there is no final judgment and, accordingly, dismiss the appeals.

Certain facts and the procedural history are undisputed. On December 30,1971, the defendant John C. Van Gilder, a neurosurgeon, performed an operation on the plaintiff, Arthur L. Robbins, at the defendant Yale-New Haven Hospital (hospital), in New Haven. On August 17, 1984, Robbins commenced this action by serving Van Gilder, the hospital, and the defendant Yale University (medical school) with a complaint returnable on September 18, 1984.

The final version of Robbins’ complaint was in three counts. The first count was against all the defendants. In that count, Robbins alleged that Van Gilder, as a member of the hospital’s neurosurgical staff, was an employee of the hospital, and was an employee of the medical school as an associate professor of neurosurgical medicine. Robbins alleged that Van Gilder had been negligent in the operation he performed on Robbins on December 30, 1971, ánd had caused Robbins serious and permanent injury.

In the second count, also against all three defendants, Robbins alleged that Van Gilder had failed to inform him of Van Gilder’s negligence. He further alleged that Van Gilder’s failure so to inform him, and that Van Gilder’s repeated assurances to him that he would fully recover, had fraudulently concealed from him the fact that he had suffered actionable harm. Robbins further alleged that, as a result of that fraudulent concealment, he did not discover and could not have reasonably discovered that he had suffered actionable harm until he received a letter, dated August 2,1982, informing him that the December 30, 1971 operation had been performed negligently.

The third count was against the hospital only. In that count, Robbins alleged that the hospital had failed to inform him that the operation had been negligently performed and that he had suffered actionable harm. He also alleged that the hospital had failed to monitor its staff and had failed to have a reporting system regarding the negligence of its staff that would have informed him that he had suffered actionable harm. He further alleged that the hospital had been engaged in a continuous course of conduct, consisting of treatment of him for the injuries he had suffered in the December 30, 1971 operation, and that, as a result, the statute of limitations governing his cause of action does not begin to run until that course of conduct ceases.

The defendants all pleaded the statute of limitations as a special defense, as well as denying the essential allegations of the complaint. In reply, Robbins alleged that: (1) the defendants should be estopped from asserting the statute of limitations because, due to their negligence, he had suffered brain damage that affected his ability to understand completely the nature and extent of what had happened to him, and to understand whether he could have had a claim for damages against the defendants; (2) the statute of limitations, General Statutes § 52-584, would be unconstitutional if applied to him; and (3) as to Van Gilder, the statute of limitations had been tolled in part pursuant to General Statutes § 52-590.

On these pleadings, the case was tried to a jury in February and early March, 1991. At the end of the plaintiffs case and at the end of all the evidence, the defendants moved for directed verdicts in their favor. The trial court, D. Dorsey, J., reserved decision on these motions.

The trial court submitted to the jury five special interrogatories, described and discussed infra. In its instructions to the jury, the trial court ordered the jury to return verdicts for the defendants on the second and third counts, for the following reasons. With respect to the second count, based on fraudulent concealment, the trial court stated that the claim “is subsumed in the plaintiff’s reply to the statute of limitations defense . . . that [the] defendants fraudulently concealed [the] plaintiff’s cause of action. It would only confuse you if I left the Second Count in the case and the removal does not, in fact, prejudice the plaintiff.”

With respect to the third count, alleging independent negligence against the hospital and a continuous course of treatment by the hospital to overcome the statute of limitations defense, the trial court stated that the independent negligence claim failed for lack of expert testimony. With respect to the continuing course of treatment allegation, the court stated that “[t]his claim is also subsumed in plaintiff’s reply to the special defense of the defendant. This states the defendant continuously treated the plaintiff on or about December, 1971, and through and beyond July, 1984. Here again, permitting this to remain would cause confusion. Its removal from the complaint will not prejudice the defense since my instruction put this claim as well as fraudulent concealment in proper perspective under the reply. Therefore I’m directing you to return a defendant’s verdict on the Third Count.”

On March 11, 1991, the jury returned a verdict on the first count (1) in favor of the plaintiff, in the amount of $1,550,000, against Van Gilder and the medical school, and (2) in favor of the hospital. With regard to that count, however, the jury also answered the five special interrogatories submitted to it as follows: (1) Van Gilder was negligent in connection with the surgery he performed on Robbins on December 30,1971; (2) Van Gilder’s negligence was the proximate cause of Robbins’ injuries and the damages claimed by Robbins; (3) Van Gilder was an agent of the hospital in connection with the surgery; (4) the claims of Robbins as to negligence and damages in connection with the performance of the surgery were barred by the statute of limitations; and (5) Robbins had not proven by clear, precise and unequivocal evidence that Van Gilder had fraudulently concealed the fact that Robbins “had suffered some form of actionable harm during the course of the surgery on December 30, 1971, so as to toll or suspend the statute of limitations.” The verdiet and the interrogatories conflicted with each other, therefore, in at least the following ways: (1) the verdict found Van Gilder and the medical school liable to Robbins, despite the specific findings that Robbins’ claim was barred by the statute of limitations and that Robbins had not proven that Van Gilder had fraudulently concealed the cause of action; and (2) the verdict found the medical school, but not the hospital, liable as Van Gilder’s principal, despite the specific finding that Van Gilder had been the agent of the hospital.

After the clerk read the verdict and inquired of the jury whether it was their verdict, the court directed the clerk to read the interrogatories and answers. The trial court thereupon informed the jury that it could not accept the verdict because the verdict was inconsistent with the answers to the interrogatories regarding the statute of limitations, and returned the jury to the deliberation room for reconsideration of its verdict and its answers to the interrogatories.

Van Gilder, the medical school and the hospital then moved for directed verdicts in their favor, upon the basis of the jury’s answers to the interrogatories, and Robbins moved that the court accept the jury’s verdict, irrespective of those answers. After the court denied the defendants’ motions for a directed verdict, Van Gilder and the medical school moved for a mistrial upon the basis of the jury’s confusion. The court took no action on Robbins’ motion to accept the verdict, or on Van Gilder’s and the medical school’s motion for a mistrial.

At that point, the jury submitted the first of what would ultimately be five written questions or other communications to the court. This first question asked: “Why does an award for negligence have to be combined with fraudulent concealment^] We thought they were two separate issues. We were awarding for negligence exclusive of fraudulent concealment.” Van Gilder and the medical school thereupon renewed their motion for a directed verdict and, after the court denied that motion, renewed their motion for a mistrial.

The jury then submitted the second question to the court: “What constitutes medical fraud?” At that point all three defendants—Van Gilder, the medical school and the hospital—moved for a mistrial. The trial court then returned the jury to the courtroom and reinstructed it, in response to the jury’s first question, on the issue of the statute of limitations and the relationship between that issue and the issue of fraudulent concealment. In the course of those instructions, moreover, the court explained why the jury’s answer to the interrogatory regarding Van Gilder’s agency was inconsistent with its verdict. The court then provided the jury with new verdict forms and a clean set of the same interrogatories.

At that point the jury submitted the following request: “To reconsider medical fraud we would like our second question answered.” The court then, again, returned the jury to the courtroom and reinstructed it on the relationship between the statute of limitations defense and issue of fraudulent concealment of a cause of action. The defendants then renewed their motions for a directed verdict and, in the alternative, a mistrial. The court denied these motions.

The jury then submitted the following statement to the trial court: “We understood that the statute of limitations was barred if the lawsuit was brought within two to three years after discovery[.] We believe discovery is 1982.” The defendants again renewed their motions for a mistrial. The court then returned the jury to the courtroom once again and, after informing the jury that its note was not in the form of a question, read the statute of limitations; see footnote 5; to the jury. The court then instructed the jury that “I don’t know what your question is, from reading this [note]. If you have a question you’ll have to write it out.” The jury orally informed the court: “By reading the statute you answered the question.” The court then adjourned for the day.

The next day, March 12, 1991, began with the fifth of the jury’s written communications to the court: (1) “Could we have a copy of the law on fraud? [2] If we can’t we would like to here [sic] you (the judge) talk about the law on fraud again? [3] Could we also here [sic] about the statute of limitations? Or a copy of?” The defendants then renewed their motions for a directed verdict. The plaintiff urged the court to follow the procedure provided in General Statutes § 52-223. The defendants objected to that procedure, and again renewed their motions for a directed verdict or, in the alternative, suggested that “the judgment has to be made at this point that this situation is so far out of control and that there just isn’t any judicial way to resolve it, here and now, other than by way of a mistrial.” The court then stated that “I have given consideration to the verdict forms, to the interrogatories, the series of questions from the jury. And I am convinced that the jury is hopelessly confused.” The court, therefore, declared a mistrial.

Thereafter, the parties filed the following written motions: (1) the plaintiff moved for judgment against the defendants in the amount of $ 1,550,000, in accordance with the jury’s verdict; (2) the defendants moved for a directed verdict notwithstanding the failure of the jury to return a verdict, pursuant to Practice Book § 321; and (3) the defendants moved for judgment in accordance with their motions for a directed verdict, based upon the jury’s answers to the interrogatories regarding the statute of limitations. In a written memorandum of decision, the trial court denied all the motions, maintaining its order of a mistrial.

The parties thereafter took the following appeals to the Appellate Court, which we transferred to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). Van Gilder and the medical school filed an appeal, Docket No. 14453, claiming that the trial court improperly (1) denied the motions for summary judgment; see footnote 4; (2) denied their motions for a directed verdict made at the close of the plaintiff’s case and at the close of all the evidence; and (3) denied their posttrial motions for judgment. In response, Robbins argues that: (1) a denial of a motion for summary judgment is not reviewable on appeal after a full trial on the merits; see Greengarden v. Kuhn, 13 Conn. App. 550, 552, 537 A.2d 1043 (1988); and (2) Van Gilder’s and the medical school’s second and third claims are not reviewable “for lack of a final judgment,” based upon the authority of Gold v. Newman, 211 Conn. 631, 560 A.2d 960 (1989).

Robbins filed an appeal, Docket No. 14454, claiming that: (1) the trial court should have granted his motion to accept the jury’s verdict and should not have ordered a mistrial; and (2) the jury’s answers to the interrogatories regarding the statute of limitations did not affect the validity of its verdict because (a) there was no basis for the court’s conclusion that the jury was hopelessly confused, (b) those answers can be harmonized with the verdict, and (c) the three year statute of repose contained in § 52-584 is unconstitutional as applied to Robbins in this case. In response, the defendants argue that: (1) the trial court was not obligated to accept the verdict; (2) the trial court correctly determined that the jury’s answers to the interrogatories were inconsistent with the verdict; and (3) § 52-58’4 is constitutional as applied to Robbins.

The hospital filed an appeal, Docket No. 14455, claiming that the trial court should have granted its motions for a directed verdict and for judgment notwithstanding the failure of the jury to reach a verdict because: (1) there was no evidence that Van Gilder had been the agent of the hospital; (2) the evidence clearly showed that Robbins’ cause of action was barred by the statute of limitations and that there was no fraudulent concealment by the hospital; and (3) the court properly directed verdicts in favor of the hospital on counts two and three. Robbins responds that: (1) the trial court’s denial of the hospital’s motions for a directed verdict and for judgment notwithstanding the failure of the jury to reach a verdict are not reviewable for lack of a final judgment, under Gold v. Newman, supra; and (2) the issues related to counts two and three remain in the case, nevertheless, because the trial court’s action in directing the verdicts was based upon its determination that the same factual and legal issues were contained in the first count and the defense thereto, and the defendants moved for the mistrial that the court ultimately ordered.

Having trekked this tortuous procedural path, we turn to the question of whether, at its end, there is a final judgment upon which our jurisdiction may rest. We conclude that there is not.

In Gold v. Newman, supra, 632, the trial court declared a mistrial after some of the jurors informed the court that they could not disregard certain depositions that had inadvertently and improperly been given to them during their deliberations. The defendants then moved for judgment in accordance with their previous motions for a directed verdict. The trial court denied these motions, and the defendants appealed. Id.

This court dismissed the appeal for lack of a final judgment. We held that the denial of a motion for judgment notwithstanding the failure of the jury to return a verdict is not a final judgment upon which an appeal may be based. Id. We stated that, in that case, the order denying the motion “[left] in effect the declaration of a mistrial, and a second trial in the normal course of events will follow. No rights of the parties have been yet determined.” Id., 635; see State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (.1983); Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 292, 320 A.2d 797 (1973).

In Gold, we also recognized that the granting by the trial court of a motion to set aside a verdict and to grant a new trial is an appealable order. That decision, however, is not appealable because such an order is a “final judgment” within the meaning of the principal appeal statute; General Statutes § 52-263; but because that statute specifically provides for an appeal from such an order as an alternative to the “final judgment” basis of appeal. Gold v. Newman, supra, 637. We also recognized in Gold that “the granting of a motion for a new trial, which opens the judgment previously rendered, does not qualify as a final judgment from which an appeal may be taken.” Id.

In Gold, moreover, the defendants argued that permitting an appeal at that procedural point might conserve judicial resources by avoiding the necessity of a second trial. Id., 638. We reasoned, however, that: (1) “[t]he legislature, by creating specific alternatives to a final judgment as a basis for appeal, has implicitly rejected other grounds for departing from the final judgment rule”; and (2) “[t]he fact that a second trial will ordinarily entail additional expense to the parties does not measure up to the circumstances we have heretofore regarded as having such a serious effect upon the rights of the parties that an appeal is warranted.” Id.

Applying the reasoning of Gold to the facts of this case compels the conclusion that there is no basis for an appeal. As in Gold, the trial court’s declaration of a mistrial will lead to a second trial. Thus, there is no final judgment under § 52-263 because “[n]o rights of the parties have been yet determined.” Id., 635. As in Gold, the parties can offer no specific statutory basis, other than the final judgment rule embodied in § 52-263, for an appeal. As in Gold, the trial court’s denial of the defendants’ motions for a directed verdict and for judgment notwithstanding the failure of the jury to reach a verdict did not provide the basis for an appeal. Indeed, Robbins implicitly recognized the applicability of Gold by arguing in his brief that the defendants’ claims were not reviewable for lack of a final judgment. What Robbins failed to recognize, however, was that the same sauce he attempted to spread on the defendants’ goose also necessarily graced his own gander. Finally, as Gold recognized, these proceedings produced no more of a final judgment for purposes of an appeal than would have an order, opening a judgment previously rendered, entered upon a motion for a new trial.

Robbins suggests that Gold is distinguishable because, unlike Gold, in this case the jury returned a verdict. We think that this is a distinction without a difference.

Practice Book § 312 strongly suggests that ordinarily a general verdict and the answers to its accompanying interrogatories are inseparable. The purpose of the interrogatories is to explain or limit the verdict. Id. The interrogatories are to be “answered and delivered to the clerk as a part of the verdict.” Id. Furthermore, “[t]he court will not accept a verdict until the interrogatories which are essential to the verdict have been answered.” Id.

As the trial court recognized, the verdict and the answers irreconcilably conflicted with each other. Furthermore, the court made three efforts, by twice reinstructing the jury and by rereading the statute of limitations to the jury, to dispel the jury’s obvious confusion. These efforts, however, yielded only continuing confusion—described by the trial court as “hopeless”— as evidenced by the jury’s questions and other communications. Although the trial court retained discretion to follow the procedure provided by § 52-223; see footnote 12; it was not required to do so. This hopeless confusion, rendering the jury unable to. return a verdict and answers that were consistent with each other despite the court’s repeated instructions, was functionally equivalent to the Gold jury’s inability “to disregard certain depositions inadvertently given to the jury during their deliberations, despite the court’s instructions to do so.” Gold v. Newman, supra, 632. Undey these circumstances, therefore, the trial court’s conduct must be regarded as having vitiated this verdict, and the verdict must be regarded as a nullity. Consequently, this case was in the same posture as Gold: the denial of a motion for judgment notwithstanding the failure of the jury to return a verdict. Id., 635.

Robbins also suggests that dismissing this appeal, in which the trial court declared a mistrial after a “verdict,” albeit internally inconsistent, had been returned, will be unwise precedent. He argues that such a holding will permit some future, less conscientious trial judge to declare a mistrial after the jury has returned a perfectly valid verdict, simply because the trial judge may disagree with the verdict, without the ability of the parties to rectify such an injustice on appeal. We are not persuaded.

First, we are not prepared to indulge in the speculation that any Superior Court judge would engage in such an extreme departure from the basic norms of judicial conduct. We know of no case in which that has happened, we doubt that any judge would read this opinion as an invitation to do so, and we doubt that it ever will occur. We decline to carve out an exception to our ordinary rules of appellate jurisdiction solely upon the basis of such an unlikely risk.

Second, the fear implicit in that argument has no basis in the record of this case. Here, the trial court had, at the least, a plausible basis for its conclusion that the verdict was invalid and that the jury could not be relied upon to return a more intelligible verdict.

Third, even if that very unlikely event ever did occur, it would not necessarily go unremedied. If there were such a valid verdict returned that the trial court inexplicably ignored by declaring a mistrial, the party whom the verdict favored would be entitled to raise as a claim of error, on appeal from the second trial, the trial court’s failure to render judgment on that verdict, “if the second trial should result in a judgment against [him].” Gold v. Newman, supra, 636.

The defendants argue that the directed verdicts on the second and third counts provide a jurisdictional basis for their appeals. We disagree.

It is clear from this record that the trial court directed those verdicts, not because it perceived there to be insufficient evidence on those counts, but because it believed that the same factual and legal issues were being litigated under the first count, the special defense of the statute of limitations and the reply of fraudulent concealment. Furthermore, the defendants repeatedly moved for a mistrial, which the trial court ultimately granted. A mistrial leads to a new trial, not to an appeal. Id., 637. They cannot now be heard to complain about the new trial, without an intervening appeal, that they repeatedly sought by their motions. Finally, the first count of the complaint is directed against all the defendants. Even under the defendants’ argument, that count remains to be retried. Thus, their rights have not yet been determined.

The appeals are dismissed.

In this opinion Callahan, Katz and F. X. HenNESSY, Js., concurred.

Berdon, J.,

dissenting. The issue raised by the majority on its own is quite simple. Does the Supreme Court have jurisdiction to hear an appeal from the trial court’s declaration of a mistrial after the jury returned a verdict that the trial court refused to accept? I dissent, not because I would necessarily end up with a different bottom line on the merits, but because the issue of jurisdiction could be important in other cases in which the trial court refuses to accept a verdict and then declares a mistrial. I believe that we do have jurisdiction and should reach the merits of the case as briefed by the parties.

In this medical malpractice case, the jury rendered a verdict in favor of the plaintiff, Arthur L. Robbins, against two defendants, John C. Van Gilder and the Yale University School of Medicine, in the amount of $1,550,000. The verdict was acknowledged by the jurors in open court. The trial court, over the objection of the plaintiff, refused to accept the verdict because it was of the opinion that the verdict conflicted with the jurors’ answers to certain interrogatories. The jury was reinstructed, furnished with additional verdict and interrogatory forms, and directed to continue deliberations. After the jury requested further instructions on the statute of limitations and fraud, the trial court found that the jury was “hopelessly confused” and declared a mistrial, over the plaintiff’s objections. The plaintiff’s principal claim on appeal is that the trial court should have accepted the verdict and that the case should be remanded to the trial court with direction to accept the verdict.

This case differs substantially from Gold v. Newman, 211 Conn. 631, 560 A.2d 960 (1989), upon which the majority relies. In Gold, there was no jury verdict. The trial court merely declared a mistrial after it became aware of the jury’s exposure to improper evidence. In the present case, the jury rendered a verdict. As a result, if this court concluded that the trial court should have accepted the verdict, it could reinstate the verdict and remand the case with instructions to accept and record the verdict. See State v. Avcollie, 178 Conn. 450, 471, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980) (this court ordered that the jury verdict be reinstated and remanded the case to the trial court with direction to render judgment). In Gold, unlike the present case, a new trial would have been required because there was no verdict and therefore nothing to reinstate.

I concede that this case does not fall within the precise bounds of the exception to the final judgment rule set forth in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983) (“[a]n otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them”). I believe, however, that Curdo should be modified to allow an appeal in those situations in which there is a verdict upon which a judgment may be predicated.

Indeed, I discern no practical difference between our jurisdiction to hear an appeal when the court sets aside a verdict; General Statutes § 52-228b; e.g., Fazio v. Brown, 209 Conn. 450, 551 A.2d 1227 (1988); Palomba v. Gray, 208 Conn. 21, 543 A.2d 1331 (1988); and when a trial court refuses to accept a verdict rendered by a jury and declares a mistrial. We should view our subject matter jurisdiction through the lens of the twenty-first century. To take such a narrow view of our subject matter jurisdiction, as the majority does, no.t only defies logic but burdens the parties with the enormous expense of relitigating an issue when relitigation may not be necessary.

Accordingly, I dissent.

       We directed the parties to discuss at oral-argument the question of whether there is a final judgment for purposes of appeal.

       The claim against Yale University was based upon the fact that Van Gilder had been, at the time of the operation, an associate professor of neurosurgical medicine at the Yale University School of Medicine. The parties have, therefore, termed this claim as one against the medical school. We do likewise, and refer herein to the defendant university as the medical school.

       Also named as defendants were neurosurgeons Joan L. Venes and Daniel C. Good, and nurse anesthetist Patricia Baron. The case was ultimately withdrawn against Venes, Good and Baron, and they are not involved in this appeal. We therefore consider only Van Gilder, the hospital and the medical school as the defendants in this case.

       Furthermore, Van Gilder and the hospital moved for summary judgment upon the basis of the statute of limitations. The trial court, Cretella, J., denied these motions.

       General Statutes § 52-584 provides: “LIMITATION OF ACTION FOR injury to person or property. No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

       General Statutes § 52-590 provides: “when defendant’s absence from state to be excluded. In computing the time limited in the period of limitation prescribed under any provision of chapter 925 or this chapter, the time during which the party, against whom there may be any such cause of action, is without this state shall be excluded from the computation, except that the time so excluded shall not exceed seven years.”

       The two verdict forms returned by the jury on the first count, dated and signed by the foreperson, were as follows: (1) a plaintiff’s verdict form, indicating that the jury had found the issues in favor of Robbins as against Van Gilder and the medical school, and finding the damages to be $1,550,000; and (2) a defendant’s verdict form finding the issues for the hospital. The record also discloses verdict forms for the defendants on the second and third counts, in accordance with the trial court’s instructions, signed by the foreperson and dated March 12, 1991.

       More specifically, the interrogatories and answers thereto were as follows:
      “Interrogatories For Jury
      1. Was the defendant Dr. John Van Gilder negligent in connection with the surgery he performed on the plaintiff Arthur Lee Robbins (plaintiff) on December 30,1971, as alleged in Count One of the Substituted Amended Complaint?
      Answer YES
      2. If you find the defendant Dr. John Van Gilder was negligent in connection with the performance of the surgery on the plaintiff on December 30,1971, was such negligence the proximate cause of the injuries and damages claimed by the plaintiff in paragraphs 12,13 and 14 of Count One of the Substituted Amended Complaint?
      Answer (NEGLIGENT) YES
      3. Was the defendant Dr. John Van Gilder an employee or agent of the defendant Yale-New Haven Hospital in connection with the surgery which he performed on the plaintiff on December [30], 1971?
      Answer AGENT
      4. Are the claims of the plaintiff as to negligence and damages in connection with the performance of the surgery on December 30, 1971, as set forth in Count One of the Substituted Amended Complaint, barred by the statute of limitation?
      Answer YES
      5. Did the plaintiff prove by ‘clear, precise and unequivocal evidence’ that the defendant Dr. John Van Gilder fraudulently concealed the fact that the plaintiff had suffered some form of actionable harm during the course of the surgery on December 30,1971, so as to toll or suspend the statute of limitations?
      Answer NO”

       The clerk asked: “Ladies and Gentlemen of the jury, is this your verdict so say you all?” The jury answered “Yes.”

       The court instructed the jury: “Ladies and Gentlemen, I can’t [accept] your verdict because there is a complete inconsistency between the interrogatories and the verdict forms. And the inconsistency consists of the fact that you found that the action was tolled by the statute of limitations, which means that it was barred by the statute of limitations. And then—the only way then that it could—that you could find that the plaintiff could recover would be if you found fraud. If you found that there was no fraud, then you could not allow any verdict for the plaintiff. So, I cannot [accept] your verdict form under those circumstances. That is why the interrogatories were submitted to you, to determine whether you had considered all of the elements of negligence, approximate [sic] cause, statute of limitations and fraud and agency. Secondly, if you found that you—that Dr. Van Gilder was the agent of the Yale-New Haven Hospital, you would have to logically, and consistently find that the Hospital was also responsible. And under those circumstances you found just the opposite. So, I am going to ask you to go back and reconsider your verdict in this particular case, in view of the interrogatories and I am going to ask you to reconsider the whole thing the interrogatories as well, as well as the verdict. But, again, if the claim is barred by the statute of limitations, there can be no recovery unless there—unless fraud was proven. So, I’ll send you back to reconsider.”

       None of the parties raises any question regarding the legal propriety, accuracy, clarity or completeness of the trial court’s original instructions on the statute of limitations, or regarding the reinstructions by the trial court.

       General Statutes § 52-223 provides: “jury may be three times returned TO CONSIDER verdict. The court may, if it judges the jury has mistaken the evidence in the action and has brought in a verdict contrary to the evidence, or has brought in a verdict contrary to the direction of the court in a matter of law, return them to a second consideration, and for the same reason may return them to a third consideration. The jury shall not be returned for further consideration after a third consideration.”

       Practice Book § 321 provides: “reservation of decision on motion FOR DIRECTED VERDICT
      “Whenever a motion for a directed verdict made at any time after the close of the plaintiffs case in chief is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made. After the acceptance of a verdict and within the time stated in Sec. 320 for filing a motion to set a verdict aside, a party who has moved for a directed verdict may move to have the verdict and any judgment rendered thereon set aside and have judgment rendered in accordance with his motion for a directed verdict; or if a verdict was not returned such party may move for judgment in accordance with his motion for a directed verdict within the aforesaid time after the jury have been discharged from consideration of the case. If a verdict was returned the court may allow the judgment to stand or may set the verdict aside and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.”

       General Statutes § 52-263 provides: “appeals from superior court, exceptions. Upon the trial of all matters of fact in any cause or action in the superior court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court or of such judge, or from the decision of the court granting a motion to set aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in sections 8-8 and 8-9.”

       “What’s sauce for the goose is sauce for the gander” has been attributed to Marcus Varro. Translated from the Latin in John Ray’s English Proverbs (1670). See State v. Fernandez, 5 Conn. App. 40, 52 n.4, 496 A.2d 533 (1985).

       Practice Book § 312 provides: “interrogatories
      “The court may submit to the jury interrogatories for the purpose of explaining or limiting a general verdict, which shall be answered and delivered to the clerk as a part of the verdict. The clerk will take the verdict and then the answers to the several interrogatories, and thereafter he will take the court’s acceptance of the verdict returned and the questions as answered, and proceed according to the usual practice. The court will not accept a verdict until the interrogatories which are essential to the verdict have been answered.”

       The dissent suggests that the trial court should nonetheless have accepted the verdict and then set it aside so as to create a viable appeal. Thus, under this reasoning, the trial court would have been compelled to accept a verdict that it knew was inherently contradictory, that was legally flawed and that would have had to be reversed on appeal. We decline to limit the trial court’s discretion to reject an irrational jury verdict for the purpose of expanding the proper limits of our appellate jurisdiction.

       I agree with the majority that subject matter jurisdiction can be raised at any time, by the parties or the court. “The issue of subject matter jurisdiction can be raised at any time including on appeal. Once brought to the attention of the court, regardless of the form of the motion, it must be acted upon. Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985). Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 556-57, 529 A.2d 666 (1987).” (Internal quotation marks omitted.) Gagnon v. Planning Commission, 222 Conn. 294, 297, 608 A.2d 1181 (1992).

       The jury found the issues in favor of the third defendant, Yale-New Haven Hospital.

       Footnote 17 of the majority opinion states that I suggest that the trial court should “have accepted the verdict and then set it aside so as to create a viable appeal.” Apparently, the majority reads a different dissent because my dissent does not include such a statement nor does it suggest such a charade.


author: Katz, J.

text:
    Middlesex Insurance Company v. James J. Quinn III et al.
    (14575)
    Peters, C. J., Borden, Katz, F. X. Hennessy and Ment, Js.

      Argued January 5
    decision released March 30, 1993

      John F. Wynne, Jr., for the appellant (named defendant).

      Frederick M. Vollono, for the appellee (plaintiff).

      Stewart M. Casper filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.
   Katz, J.

The dispositive issue in this appeal is whether the defendant, James J. Quinn III, is a covered person under the terms of an automobile liability insurance policy issued by the plaintiff, Middlesex Insurance Company (Middlesex), to the defendant’s father, James J. Quinn, Jr. Following the trial court’s judgment vacating an arbitration award of $83,333 rendered in favor of the defendant, the defendant appealed to the Appellate Court, which affirmed the judgment of the trial court. Middlesex Ins. Co. v. Quinn, 27 Conn. App. 573, 609 A.2d 1008 (1992). We granted the defendant’s petition for certification to appeal to decide whether Connecticut’s public policy precludes an insurer from excluding from underinsured motorist coverage, a relative of the named insured who resides in the named insured’s household and who owns a car. We affirm the judgment of the Appellate Court.

The Appellate Court opinion sets forth the following undisputed facts. “On February 12, 1984, while driving a car he owned, the defendant was injured in a collision in New Haven. The defendant recovered $20,000 from the tortfeasor, the full amount of liability insurance available. The defendant’s car was insured for $100,000 bodily injury liability and $20,000 uninsured motorist coverage.

“At the time of the collision, the defendant lived with his father, whom [Middlesex] insured under two automobile liability policies covering five vehicles. Each of these vehicles was insured for $20,000 in uninsured motorist coverage. The defendant sought to aggregate these amounts and to collect $100,000 from [Middle-sex]. [Middlesex denied coverage on the basis that he is not a covered person as defined in the policy.] When [Middlesex] . . . refused to arbitrate the dispute, the defendant sought an order compelling arbitration. The trial court, Purtill, J., issued such an order, which [the Appellate Court] subsequently upheld. See Quinn v. Middlesex Ins. Co., 16 Conn. App. 209, 547 A.2d 95, cert. denied, 209 Conn. 817, 550 A.2d 1085 (1988).

“On February 1,1991, the arbitration panel, in a two to one decision, awarded the defendant $83,333, with the plaintiff receiving $16,666.67 credit for the amount the tortfeasor had paid. The majority found that the policy’s definition with respect to resident relatives [who own a car] is invalid and that the defendant is therefore a covered person under the plan. The dissent determined that the defendant is not a covered person and that our law does not require that he be covered under the circumstances of this case. On February 19, 1991, [Middlesex] moved to vacate the arbitration award. The defendant subsequently moved to confirm it. On June 7,1991, the trial court vacated the award and denied the motion to confirm.” Middlesex Ins. Co. v. Quinn, supra, 575. The defendant appealed to the Appellate Court, which affirmed the judgment of the trial court. Id., 583. This appeal followed.

The defendant claims that public policy precludes an automobile insurer from excluding from underinsured motorist coverage a resident family member who owns a car and that the defendant is, therefore, entitled to underinsured motorist benefits under the Middlesex policy issued to his father.* ** The defendant’s argument is based upon the principle of public policy that an insurer may not reduce its liability for underinsured motorist coverage by contract except to the extent that the relevant regulations expressly authorize. Lowrey v. Valley Forge Ins. Co., 224 Conn. 152, 156, 617 A.2d 454 (1992). Because no regulation expressly provides for exclusion from coverage of a resident of an insured’s household who owns a car, the defendant contends that Middlesex cannot exclude the defendant from underinsured motorist benefits. We disagree.

The Middlesex policy issued to the defendant’s father is an automobile liability policy that provides underinsured motorist coverage, in addition to other coverage. Under the section labeled “Liability Insurance,” the insurer will “pay damages for bodily injury or property damage for which the law holds you responsible because of a car accident involving a car we insure.” The policy also covers “[ajnyone using, with your permission, a car described on the declarations page, or any additional, replacement or substitute . . . .” Under the section labeled “Uninsured Motorist Insurance,” the policy promises to “pay the damages you’re legally entitled to receive from the owner or operator of an uninsured motor vehicle because of bodily injury. We’ll pay these damages for bodily injury you suffer in a car accident while occupying a car or, as a pedestrian, as a result of having been struck by an uninsured motor vehicle.” Additionally, the policy provides uninsured motorist benefits to “[ajnyone occupying, with your permission, a car we insure . . . .” The “Definitions” section at the beginning of the policy, which applies to both liability and underinsured motorist insurance, states that “You, your and yourself . . . means a member of the family who is a resident of the household and who doesn’t own a car . . . .”

Because the defendant owns his own automobile, he is clearly not an “insured” under the unambiguous definition of an insured in the policy. The defendant does not argue to the contrary. The defendant maintains, however, that this definition of limited coverage violates public policy. We find the defendant’s argument unpersuasive.

Our underinsured motorist insurance statute, General Statutes § 38a-336, formerly § 38-175c, requires that “[e]ach automobile liability insurance policy shall provide insurance, herein called uninsured motorist coverage . . . for the protection of persons insured thereunder . . . .” (Emphasis added.) The accompanying regulation, § 38a-334-6 (a) of the Regulations of Connecticut State Agencies provides that the “insurer shall undertake to pay on behalf of the insured all sums which the insured shall become legally entitled to recover . . . .” (Emphasis added.)

Unlike the automobile liability statutes, the uninsured motorist statute does not require automobile insurance policies to provide underinsured motorist benefits to any particular class or group of insureds. See Indiana Lumbermens Mutual Ins. Co. v. Vincel, 452 N.E.2d 418, 424 (Ind. App. 1983). The legislature did not specifically define “insured” in the context of underinsured motorist coverage. Rather, the statute requires that underinsured motorist coverage must be provided “for the protection of persons insured thereunder.” (Emphasis added.) General Statutes § 38a-336 (a) (1). Thus, “persons insured” in this statute refers to persons specified as insureds in the liability portion of the policy. There would be no violation of public policy, therefore, unless the insurance policy specifically were to limit underinsured motorist coverage in such a way as “to [preclude] persons who would otherwise qualify as insureds for liability purposes.” Indiana Lumbermens Mutual Ins. Co. v. Vincel, supra.

If the legislature intended to mandate coverage for all resident relatives of the named insured irrespective of whether they own a vehicle, it could have expressly so provided. In the absence of clear direction from the legislature, we decline to extend public policy to require insurers to cover family members who own vehicles. Presumably, the legislature has left such coverage to be provided by the policies on the vehicles owned by those family members.

This conclusion is consistent with our previous analysis and interpretation of § 38-175c, now § 38a-336, in Harvey v. Travelers Indemnity Co., 188 Conn. 245, 449 A.2d 157 (1982), and Smith v. Nationwide Mutual Ins. Co., 214 Conn. 734, 573 A.2d 740 (1990). In Harvey v. Travelers Indemnity Co., supra, we held that the plaintiff, an insured under his mother’s automobile liability policy, was entitled to underinsured motorist benefits under that policy, even though he was occupying his father’s uninsured automobile when he was injured. We concluded that the public policy embodied in § 38-175c directs that an insured’s geographical location at the time of the injury is “irrelevant to recovery under the statutorily mandated coverage.” Id., 250. Underinsured motorist coverage attaches to the insured person, not the insured vehicle. Id. We held that an insurance contract’s exclusion to the contrary violated the public policy underlying uninsured motorist coverage in Connecticut because the statute requires every automobile liability policy to provide uninsured motorist coverage for the protection of persons insured thereunder. Because the plaintiff was an insured under the liability section of his mothers policy, the policy’s exclusion of the plaintiff from uninsured motorist benefits violated public policy.

In Smith v. Nationwide Mutual Ins. Co., supra, the plaintiff was a passenger in an automobile owned by the driver when it was involved in a one car accident. The plaintiff sought uninsured motorist benefits under a policy issued to the driver’s father. The plaintiff argued that “once a policy provides liability coverage to an insured, the underinsured motorist coverage therein is coextensive with the liability coverage.” Id., 736. The liability coverage section of that policy provided that “ ‘[w]e will pay damages for bodily injury or property damage for which any covered person becomes legally responsible because of an auto accident.’ ” Id. A “covered person” was defined in the policy as “ ‘you or any family member for the ownership, maintenance or use of any auto or trailer.’ ” Id. The plaintiff argued that under the terms of the driver’s father’s automobile liability policy, the driver, as a family member, was a “covered person” who became legally responsible for the plaintiff’s injuries because of an automobile accident while driving “any auto.” Id., 736-37. Because the father’s policy provided liability coverage to the driver while using any auto, the plaintiff argued that “the policy must also provide underinsured benefits to her as an occupant of that vehicle.” Id., 737.

We concluded that the driver was not a covered person under the liability section of his father’s policy because the coverage excluded “ ‘any vehicle other than your covered auto which is owned by any family member.’ ” Id. We held that an insurer does not violate public policy by limiting liability coverage to particular vehicles. See General Statutes § 38a-335 (a) and (d). Because the driver was not a “covered person” under the liability section of the policy, the insurer was not liable for the injuries he caused and the plaintiff could not recover damages under the policy. Moreover, the plaintiff was not a covered person within the definition provided in the uninsured motorist section of the policy because she was neither a family member nor an occupant of a covered automobile. We concluded that there was no violation of public policy because neither the plaintiff nor the driver was insured under the father’s policy. Id., 737-41.

The public policy behind uninsured motorist coverage, therefore, requires an insurer to provide uninsured motorist benefits to any insured under the automobile liability policy. “[Ojnce an automobile liability policy is issued extending [liability] coverage to a certain class of insureds . . . uninsured motorist coverage must be offered to cover the same class of insureds”; State Farm Automobile Ins. Co. v. Reaves, 292 Ala. 218, 223, 292 So. 2d 95 (1974); except as expressly excluded by statute or regulation. Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 377, 593 A.2d 498 (1991).

Other jurisdictions with statutes and regulations similar to those of Connecticut have also concluded that there is no violation of public policy if the person being denied uninsured motorist benefits is not an insured under the liability section of the policy. See, e.g., Mathis v. Auto-Owners Ins. Co., 387 So. 2d 166 (Ala. 1980); France v. Liberty Mutual Ins. Co., 380 So. 2d 1155 (Fla. App. 1980); Girrens v. Farm Bureau Mutual Ins. Co., 238 Kan. 670, 715 P.2d 389 (1986); Lewis v. American Family Ins. Group, 555 S.W.2d 579 (Ky. 1977); Robertson v. Cumis Ins. Co., 355 So. 2d 1371 (La. App.), cert. denied, 357 So. 2d 1153 (La. 1978); Washington v. Travelers Ins. Co., 92 Mich. App. 151, 284 N.W.2d 754 (1979); Famuliner v. Farmers Ins. Co., 619 S.W.2d 894 (Mo. App. 1981); Malo v. Aetna Casualty & Surety Co., 459 A.2d 954 (R.I. 1983); Farmers Ins. Co. v. Miller, 87 Wash. 2d 70, 549 P.2d 9 (1976).

Our analysis, however, does not end here. Although we have concluded that the denial of underinsured motorist benefits to a person who is not an insured within the definition of insured in the automobile liability section of the policy does not violate the policy embedded in § 38a-336, we must also examine the definition of an insured under the policy to determine if it violates public policy. An insurer cannot limit otherwise mandated underinsured motorist coverage by labeling a forbidden exclusion as a definition. We conclude that the pertinent definition in this policy does not incorporate a forbidden exclusion and, therefore, does not violate public policy.

The legislature intended to provide that every insured within the definition of that term in the liability section of the policy is entitled to recover underinsured motorist benefits for the damages “ ‘he or she would have been able to recover if the uninsured [tortfeasing] motorist had maintained a policy of liability insurance.’ ” Streitweiser v. Middlesex Mutual Assurance Co., supra, 377. Section 38a-336 states that uninsured motorist coverage must be provided in every automobile liability policy for “the protection of persons insured thereunder.” “The policy behind linking uninsured motorist coverage to liability coverage is to reward those who obtain insurance coverage for the benefit of those they might injure. Persons who are uninsured for purposes of liability coverage should not be protected by the public policy of this state from their own kind.” Anderson v. State Farm Mutual Automobile Ins. Co., 471 N.E.2d 1170, 1175 (Ind. App. 1984); Indiana Lumbermens Mutual Ins. Co. v. Vincel, supra, 426.

The owner of an automobile is expected and required to obtain his or her own automobile insurance. General Statutes § 14-12b (a) (1). In this case, although the defendant had insurance on his car, he elected to purchase only the minimum amount of coverage. “Obviously, [Middlesex] ... did not intend to contract with [the defendant’s] father to provide liability coverage on automobiles in the [Quinn] household for which no premium had been paid, and the company unambiguously has made that intent part of the insurance contract.” Anderson v. Allstate Ins. Co., 685 F.2d 1299, 1302 (11th Cir. 1982) (interpreting Alabama law). In the absence of clear direction from the legislature, “[w]e decline to extend the public policy ... to allow a member of a family to purchase one liability policy and claim total coverage thereunder for the entire family while vastly increasing the risk to his or her insurer by knowingly owning and operating a fleet of uninsured [or underinsured] vehicles upon the highways.” France v. Liberty Mutual Ins. Co., supra, 1156. The defendant is limited to the coverage he purchased on his own automobile.

The judgment is affirmed.

In this opinion the other justices concurred.

       Middlesex’ application to vacate the arbitration award also named James J. Quinn, Jr., as a defendant. Only James J. Quinn III appealed. References to the defendant are to James J. Quinn III.

       Certification was granted limited to the following question: “Does public policy preclude an automobile insurer from excluding from uninsured motorist coverage a resident family member who owns a vehicle?” Middlesex Ins. Co. v. Quinn, 223 Conn. 908, 612 A.2d 56 (1992).

       The Middlesex policy issued to the defendant’s father provides in pertinent part: “You, your and yourself means the person named on the declarations page and the person’s husband or wife if a resident of the same household.
      “You, your and yourself also means a member of the family who is a resident of the household and who doesn’t own a ear or whose spouse doesn’t own a car.” (Emphasis added.)

       The father’s policy also included uninsured motorist coverage. “Under our law the statutes and regulations applicable to uninsured motorist coverage also apply to underinsured motorist coverage. . . . Because this case involves a claim for underinsured motorist coverage, we refer herein to that coverage.” Lowrey v. Valley Forge Ins. Co., 224 Conn. 152, 153 n.l, 617 A.2d 454 (1992).

       Additionally, the defendant was not occupying an automobile insured under the policy at the time of his injury. He was not entitled, therefore, to underinsured motorist benefits as an occupant of an insured automobile.

       General Statutes § 38a-336, formerly § 38-175c, provides: “uninsured motorist coverage, (a) (1) Each automobile liability insurance policy shall provide insurance, herein called uninsured 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. Each insurer licensed to write automobile liability insurance in this state shall provide uninsured motorists coverage with limits requested by the named insured upon payment of the appropriate premium, but the insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily injury coverage of the policy issued to the named insured. No insurer shall be required to provide uninsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured, or (B) to any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured.
      “(2) Notwithstanding any provision of this section to the contrary, each automobile liability insurance policy issued or renewed on and after July 1, 1984, shall provide uninsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless the insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by the insured.
      “(b) An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage, exceed the limits of the insured’s uninsured motorist coverage.
      “(c) Each automobile liability insurance policy issued on or after October 1,1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. With respect to any claim submitted to arbitration on or after October 1,1983, the arbitration proceeding shall be conducted by a single arbitrator if the amount in demand is forty thousand dollars or less or by a panel of three arbitrators if the amount in demand is more than forty thousand dollars.
      “(d) For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subsection (b) of this section.”

       Section 38a-334-6, formerly § 38-175a-6, of the Regulations of Connecticut State Agencies provides in relevant part: “minimum provision for PROTECTION AGAINST UNINSURED 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 motor vehicle because of bodily injury sustained by the insured caused by an accident involving the uninsured motor vehicle. This coverage shall insure the occupants of every motor vehicle to which the bodily injury liability coverage applies. ‘Uninsured motor vehicle’ includes a motor vehicle insured against liability by an insurer that is or becomes insolvent.”

       Automobile liability insurers are required to provide liability coverage with respect to the insured automobile for the named insured, resident relatives of the named insured and permissive users. General Statutes § 38a-335 (d); Regs., Conn. State Agencies § 38a-334-5 (d).

       Section 38a-334-6 (a) of the Regulations of Connecticut State Agencies does, however, require uninsured motorist coverage for occupants of an insured motor vehicle: “This coverage shall insure the occupants of every motor vehicle to which the bodily injury liability coverage applies.” In light of the fact that occupants of a motor vehicle would not be insured under the driver’s policy for automobile liability, § 38a-334-6 (a) requires protection for this otherwise unprotected group. Although occupants of a vehicle may have their own liability coverage, which would entitle them to uninsured motorist benefits; see Harvey v. Travelers Indemnity Co., 188 Conn. 245, 449 A.2d 157 (1982); the insurance commissioner has designated “occupants” as a class of persons who may receive more extensive uninsured motorist coverage.
      We note that the regulation does not limit uninsured motorist coverage to occupants who do not own a car. Therefore, had the defendant been an occupant of an automobile insured under the Middlesex policy, Middlesex concedes that coverage would be mandated. See footnote 5. Indeed, Middlesex argued in this court that had the defendant been an occupant of an automobile insured under its policy, to preclude the defendant from coverage on the basis of his ownership of an automobile would have been a violation of public policy as set forth in § 38a-334-6 (a).