source: Caselaw Access Project

author: CALLAHAN, C. J. MCDONALD, J.,

license: Public Domain

text:
    BRIDGETT M. SHAWHAN v. JASON S. LANGLEY
    (SC 15949)
    Callahan, C. J., and Borden, Berdon, Palmer and McDonald, Js.

      Argued March 19
    officially released June 22, 1999

      John H. Hanks, for the appellant (defendant).

      Todd R. Bainer, for the appellee (plaintiff).

      William F. Gallagher and Kurt D. Koehler filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.
   Opinion

CALLAHAN, C. J.

The issue in this appeal is whether General Statutes § 52-192a authorizes a plaintiff to file, with respect to a single defendant, more than one offer of judgment. We conclude that § 52-192apermits aplaintiff to file only one offer of judgment as to a particular defendant. Accordingly, we reverse the judgment of the trial court.

The following facts and procedural history are undisputed. On March 12, 1995, the plaintiff, Bridgett M. Shawhan, and the defendant, Jason S. Langley, were involved in a motor vehicle accident. The plaintiff brought this action against the defendant on November 16, 1995, alleging that she had sustained injuries as a result of the accident and that the defendant’s negligent conduct had caused her injuries. On December 15,1995, pursuant to § 52-192a and Practice Book § 346, now § 17-14, the plaintiff filed an offer of judgment in the amount of $75,000 (first offer of judgment). The first offer of judgment was not accepted by the defendant within thirty days, and, consequently, it was deemed to have been rejected pursuant to § 52-192a (a). The plaintiff subsequently learned that the defendant’s automobile liability insurance policy had a policy limit of $20,000, and, on January 14, 1997, she filed a second offer of judgment in the amount of $20,000 (second offer of judgment). The second offer of judgment also was not accepted by the defendant within thirty days. The case was then tried before a jury, which returned a verdict in favor of the plaintiff. The jury found that, as a result of the accident, the plaintiff had sustained economic damages in the amount of $3602.90 and non-economic damages in the amount of $67,392, for total damages of $70,994.90. After reducing the damages by 50 percent to account for contributory negligence and by $2866.90 to account for collateral source payments, the trial court rendered judgment awarding the plaintiff total damages of $32,630.55.

The plaintiff subsequently moved for prejudgment interest on the basis of § 52-192a because her damages award exceeded the amount of her second offer of judgment. The defendant objected to the plaintiffs motion for an additur, arguing that § 52-192a permits a plaintiff to file only one offer of judgment and that, because the plaintiffs damages award did not exceed the amount of her first offer of judgment, § 52-192a did not entitle her to an award of prejudgment interest. Concluding that § 52-192a authorizes a plaintiff to file more than one offer of judgment, the trial court granted the plaintiffs motion and, on the basis of her second offer of judgment, awarded her prejudgment interest pursuant to § 52-192a (b). 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 § 65-1 and General Statutes § 51-199 (c).

On appeal, the defendant argues that the trial court improperly awarded the plaintiff prejudgment interest based on her second offer of judgment. Specifically, the defendant maintains that § 52-192a authorizes a plaintiff to file only one offer of judgment and that, consequently, the plaintiffs second offer of judgment does not provide a basis for an award of prejudgment interest. We agree.

We begin our analysis by noting that interpretation of § 52-192a is a matter of statutory construction. “Statutory construction is a question of law and therefore our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” General Motors Corp. v. Dohmann, 247 Conn. 274, 286, 722 A.2d 1205 (1998); Ferrigno v. Cromwell Development Associates, 244 Conn. 189, 195, 708 A.2d 1371 (1998).

“As with any issue of statutory interpretation, our initial guide is the language of the operative statutory provisions.” In re Baby Z., 247 Conn. 474, 498, 724 A.2d 1035 (1999); Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 102, 680 A.2d 1321 (1996). Section 52-192a, which sets forth the statutory scheme relating to an offer of judgment by a plaintiff, provides in relevant part: “(a) . . . [T]he plaintiff may before trial file with the clerk of the court a written ‘offer of judgment’ signed by him or his attorney, directed to the defendant or his attorney, offering to settle the claim underlying the action and to stipulate to a judgment for a sum certain. . . . Within thirty days after being notified of the filing of the ‘offer of judgment’ and prior to the rendering of a verdict by the jury or an award by the court, the defendant or his attorney may file with the clerk of the court a written ‘acceptance of offer of judgment’ agreeing to a stipulation for judgment as contained in plaintiffs ‘offer of judgment’. Upon such filing, the clerk shall enter judgment immediately on the stipulation. If the ‘offer of judgment’ is not accepted within thirty days and prior to the rendering of a verdict by the jury or an award by the court, the ‘offer of judgment’ shall be considered rejected and not subject to acceptance unless refiled. Any such ‘offer of judgment’ and any ‘acceptance of offer of judgment’ shall be included by the clerk in the record of the case, (b) After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. ...” The language of the statute, which is framed in the singular, suggests, albeit not unambiguously or conclusively, that the statute contemplates one offer of judgment.

We next turn our attention to the genealogy and legislative history of § 52-192a. Prior to 1982, General Statutes (Rev. to 1981) § 52-192a provided in relevant part: “(a) . . . [T]he plaintiff may before trial file with the clerk of the court a written ‘offer of judgment’ . . . offering to settle the claim underlying such action and to stipulate to a judgment for a sum certain. ... If such ‘offer of judgment’ is not accepted within thirty days, such ‘offer of judgment’ shall be considered rejected and not subject to acceptance unless refiled. Following such rejection of any ‘offer of judgment, ’ the plaintiff may file a new ‘offer of judgment’ and may continue to do so up to the time of trial. All such ‘offers of judgment’ and any ‘acceptance of offer of judgment’ shall be included by the clerk in the record of the case, (b) After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment,’ the court shall add to the verdict twelve per cent annual interest on the amount contained in such offer .... For purposes of this computation, the largest ‘offer of judgment’ which was equal to or less Hum the verdict shall be used. . . .” (Emphasis added.) Thus, prior to 1982, § 52-192a expressly permitted plaintiffs to file multiple offers of judgment up to the time of trial.

In 1982, however, by the enactment of No. 82-228 of the 1982 Public Acts (P.A. 82-228), the legislature amended § 52-192a to delete the language that had permitted plaintiffs to file multiple offers of judgment. Public Act 82-228 provides in relevant part: “(a) . . . [T]he plaintiff may before trial file with the clerk of the court a written ‘offer of judgment’ . . . offering to settle the claim underlying such action and to stipulate to ajudgment for a sum certain. . . . If such‘offer of judgment’ is not accepted within thirty days, such ‘offer of judgment’ shall be considered rejected and not subject to acceptance unless refiled. Any such ‘offer of judgment’ and any ‘acceptance of offer of judgment’ shall be included by the clerk in the record of the case, (b) After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment,’ the court shall add to the verdict twelve per cent annual interest on the amount of the verdict . . . .” (Emphasis added.) The deletion of the language authorizing multiple offers of judgment is strong evidence that the legislature intended that a plaintiff be permitted to file only one offer of judgment.

Moreover, during the discussion on the floor of the Senate on Substitute House Bill No. 5131, the bill enacted as P.A. 82-228 and codified as § 52-192a, Senator Howard T. Owens, Jr., then cochairman of the judiciary committee, remarked: The Bill would change from unlimited to one of a number of offers of judgment which a plaintiff could make in a suit and when the plaintiff is to receive interest in addition to judgment, would require that interest be a percentage of the amount awarded rather than the highest rejected offer of judgment.” (Emphasis added.) 25 S. Proc., Pt. 10, 1982 Sess., pp. 3257-58. Senator Owens’ remark unequivocally indicates that P.A. 82-228 was intended to limit to one the number of offers of judgment a plaintiff could file in an action. We conclude, therefore, that § 52-192a permits a plaintiff to file only one offer of judgment as to each defendant. Because the damages awarded to the plaintiff do not exceed the amount of the plaintiffs first offer of judgment, § 52-192a (b) does not entitle the plaintiff to an award of prejudgment interest.

Finally, we note that, “[although General Statutes § 1-1 (f) provides that [w]ords importing the singular number may extend and be applied to several persons or things, and words importing the plural number may include the singular, we have held that because § 1-1 (f) uses the word ‘may’ it is clearly directory and not mandatory. . . . [S]uch statutory expressions are legislative statements of a general principle of interpretation. . . . The principle does not require that singular and plural word forms have interchangeable effect, and discrete applications are favored except where the contrary intent or reasonable understanding is affirmatively indicated.” (Citation omitted; internal quotation marks omitted.) Stamford Ridgeway Associates v. Board of Representatives, 214 Conn. 407, 430, 572 A.2d 951 (1990). There is no contrary intent or reasonable understanding affirmatively indicated in § 52-192a. Rather, the legislative histoiy and genealogy of § 52-192a clearly indicate that when the legislature enacted the statute, it intended that plaintiffs be permitted to file only one offer of judgment. “[We] cannot, by the process of construction, abrogate a clear expression of legislative intent.” (Internal quotation marks omitted.) Winchester v. State Board of Labor Relations, 175 Conn. 349, 359, 402 A.2d 332 (1978).

The judgment is reversed with respect to the award of offer of judgment interest and the case is remanded with direction to render judgment in favor of the plaintiff for $32,630.55.

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

MCDONALD, J.,

with whom BERDON, J., joins, dissenting. I do not agree that General Statutes § 52-192a, which provides for prejudgment interest under certain circumstances, limits the plaintiff to filing and refiling but a single offer of judgment.

I do not agree that the history of the statute and its amendment dictate the result reached by the majority in this case. Before its amendment in 1982, the statute provided that a plaintiff could file multiple offers of judgment, that those offers were to be kept in the case file and that the highest rejected offer equal to or less than the amount in the final judgment was to be used to compute the time and principal in determining the amount of prejudgment interest. The current statute plainly provides that a party may file an offer of judgment to be accepted within thirty days. If not accepted within thirty days, the offer will be “considered rejected and not subject to acceptance unless refiled.” General Statutes § 52-192a (a). The statute further provides that “[a]ny such ‘offer of judgment’ . . . shall be included by the clerk in the record of the case . . . [and] [i]f the court ascertains from the record that the [judgment is] equal to or greater than the sum certain stated in [the plaintiffs] ‘offer of judgment’, the court shall add [prejudgment interest] . . . .” General Statutes § 52-192a (a) and (b). The legislature clearly eliminated comparison of a plaintiffs serial offers of judgment as a basis for computing the interest. By providing that there be one offer of judgment for that computation, the legislature did not forbid the plaintiff from refiling a different final and effective offer of judgment. It is unrealistic to read the statute to contemplate that the plaintiff would refile the same offer of judgment already rejected. The effect would be only to set a later date for the interest to begin running, to the plaintiffs disadvantage. The only sensible reading of the right to refile is that this plaintiff may file a different figure at a later date, after having reevaluated her position, with a more realistic approach to settlement. This also would further the purpose of the legislation, which is to encourage pretrial settlements and reduce the civil logjam in our courts.

“In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result. King v. Board of Education, 203 Conn. 324, 332-33, 524 A.2d 1131 (1987).” (Internal quotation marks omitted.) Summit Hydropower Partnership v. Commissioner of Environmental Protection, 226 Conn. 792, 808, 629 A.2d 367 (1993). With that principle in mind, I would affirm the judgment of the trial court.

Accordingly, I respectfully dissent.

       General Statutes § 52-192a provides: “(a) After commencement of any civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, the plaintiff may before trial file with the clerk of the court a written ‘offer of judgment’ signed by him or his attorney, directed to the defendant or his attorney, offering to settle the claim underlying the action and to stipulate to a judgment for a sum certain. The plaintiff shall give notice of the offer of settlement to the defendant’s attorney, or if the defendant is not represented by an attorney, to the defendant himself. Within thirty days after being notified of the filing of the ‘offer of judgment’ and prior to the rendering of a verdict by the jury or an award by the court, the defendant or his attorney may file with the clerk of the court a written ‘acceptance of offer of judgment’ agreeing to a stipulation for judgment as contained in plaintiffs ‘offer of judgment’. Upon such filing, the clerk shall enter judgment immediately on the stipulation. If the ‘offer of judgment’ is not accepted within thirty days and prior to the rendering of a verdict by the jury or an award by the court, the ‘offer of judgment’ shall be considered rejected and not subject to acceptance unless refiled. Any such ‘offer of judgment’ and any ‘acceptance of offer of judgment’ shall be included by the clerk in the record of the case.
      “(b) After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment.’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment’, the court, shall add to the amount so recovered twelve per cent annual interest on said amount, computed from the date such offer was filed in actions commenced before October 1, 1981. In those actions commenced on or after October 1, 1981, the interest shall be computed from the date the complaint in the civil action was filed with the court if the 'offer of judgment' was filed not later than eighteen months from the filing of such complaint. If such offer was filed later than eighteen months from the date of filing of the complaint, the interest shall be computed from the date the ‘offer of judgment’ was filed. The court may award reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly. This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney’s fees in accordance with the provisions of any written contract between the parties to the action.”

       Practice Book § 17-14, formerly § 346, provides: “After commencement of any civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, the plaintiff may, before trial, file with the clerk of the court a written ‘offer of judgment’ signed by the plaintiff or the plaintiffs attorney, directed to the defendant or the defendant’s attorney, offering to settle the claim underlying such action and to stipulate to a judgment for a sum certain. The plaintiff shall give notice of such offer of settlement to the defendant’s attorney, or if the defendant is not represented by an attorney, to the defendant.”

       Because we conclude that the plaintiff was entitled to file only one offer of judgment, the second offer of judgment was invalid and, thus, it is of no significance that the defendant did not accept that offer.

       See General Statutes § 52-225a.

       We find unpersuasive the plaintiffs argument that her first offer of judgment, which was filed on December 15, 1995, was invalid because she sent notice of the offer to an attorney at the defendant’s automobile liability insurer and did not provide the defendant with notice. Section 52-192a (b) provides that “[ajfter trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accopl.....” In this case, 1he trial court made a determination that, on December 15, 1995, the plaintiff made a valid offer of judgment that the defendant failed to accept. Moreover, the defendant has never challenged the sufficiency of notice with respect to the plaintiff’s first offer of judgment and, in fact, acknowledges that he had received notice of the first offer of judgment.

       Although we recognize that the purpose of § 52-192ais to promote pretrial settlements by encouraging defendants to accept reasonable offers of judgment; Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 55-56, 717 A.2d 77 (1998); we note that the legislature has provided plaintiffs with eighteen months to evaluate their claims and to come up with a reasonable offer of judgment. The plaintiff in this case filed her first offer of judgment approximately one month after filing her complaint. It was only after discovering that the defendant had a $20,000 policy limit on his automobile liability policy that the plaintiff realized that her first offer of judgment was not reasonable, and, thus, she then filed her second offer of judgment in the exact amount of the defendant’s policy limit. Policy limits of an insurance liability policy are readily discoverable within eighteen months of the filing of a complaint. See General Statutes § 52-200a; Practice Book § 13-12. Thus, plaintiffs are given ample time to evaluate a claim and put forth a reasonable offer of judgment pursuant to § 52-192a.

       Senator Howard T. Owens, Jr., stated that “[t]he Bill would change from unlimited to one of a number of offers of judgment which a plaintiff could make”; (emphasis added) 25 S. Proc., Pt. 10, 1982 Sess., p. 3257; and when interest was computed, “that interest be a percentage of the amount awarded rather than the highest rejected offer of judgment.” Id., p. 3258. Nothing in the remarks of Senator Owens indicating an intent to end the computation of prejudgment interest based upon “the highest rejected offer of judgment” is clearly evidence that only a single offer of judgment was to be permitted.


author: BORDEN, J. BERDON, J., MCDONALD, J.,

text:
    WINSTON CLARKE v. COMMISSIONER OF CORRECTION
    (SC 15575)
    Borden, Berdon, Norcott, Katz and McDonald, Js.
    Argued January 19
    officially released June 22, 1999

      James A. Shanley, Jr., special public defender, for the appellant (petitioner).

      Rita, M. Shair, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, James A. Kitten, supervisory assistant state’s attorney, and John Waddock and Christopher Alexy, assistant state’s attorneys, for the appellee (respondent).

      Ann M. Parent filed a brief for the Connecticut Civil Liberties Union Foundation as amicus curiae.
   Opinion

BORDEN, J.

In this case, we granted certification to appeal from the judgment of the Appellate Court in order to consider the important question of whether a habeas coipus petitioner who claims actual innocence of the crime of which he stands convicted must establish that his claim of innocence is sustained by newly discovered evidence. The Appellate Court had concluded that the petitioner, Winston Clai ke, was required to establish his innocence by such evidence, and that the evidence that he had put forth in support of his claim of innocence did not meet that standard. Clarke v. Commissioner of Correction, 43 Conn. App. 374, 384, 682 A.2d 618 (1996). Accordingly, the Appellate Court affirmed the habeas court’s denial of the writ. Id. We then granted certification to appeal, limited to that issue. We conclude, however, after having examined the record on appeal and considered the briefs and oral arguments of the parties, that the appeal should be dismissed on the ground that certification to appeal was improvidently granted.

After a jury trial in November, 1990, the petitioner was convicted of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), and of possession of a controlled substance with intent to sell in violation of General Statutes § 21a-277 (b). The petitioner, however, faded to appear for the last day of the jury trial and for the sentencing in February, 1991. Accordingly, he was sentenced in absentia to an effective term of thirteen years incarceration on both convictions. Although the record of this appeal does not disclose precisely when and how, it is obvious that he subsequently was apprehended and remanded to the custody of the respondent, the commissioner of correction.

In October, 1994, the petitioner filed an amended petition claiming actual innocence of the offenses of which he stood convicted. After a trial, the habeas court, applying the standard for proving actual innocence articulated by Justice White in his concurring opinion in Herrera v. Collins, 506 U.S. 390, 429, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993) (based on newly discovered evidence and entire record of original trial, no rational trier of fact could find proof beyond reasonable doubt), found that “a rational trier of fact could find proof of the petitioner’s guilt beyond a reasonable doubt.” Thus, although the habeas court referred to the “newly discovered evidence” requirement, it did not employ that requirement in rejecting the petitioner’s claim. Instead, the court addressed the claim of actual innocence and rejected the claim on its merits.

After a grant of certification to appeal to the Appellate Court; see General Statutes § 52-470 (b); the petitioner appealed to that court. The Appellate Court, however, did not address the petitioner’s claim regarding his actual innocence. Instead, relying on that court’s decision in Williams v. Commissioner of Correction, 41 Conn. App. 515, 677 A.2d 1, appeal dismissed, 240 Conn. 547, 692 A.2d 1231 (1997), the Appellate Court determined that the evidence on which the petitioner relied for that claim was not “newly discovered,” within the meaning of that phrase in habeas corpus parlance, and affirmed the judgment of the habeas court on that basis. Clarke v. Commissioner of Correction, supra, 43 Conn. App. 384. Thus, the Appellate Court did not review the merits of the petitioner’s actual innocence claim. This certified appeal followed.

In Summerville v. Warden, 229 Conn. 397, 422, 641 A.2d 1356 (1994), this court held for the first time that “a substantial claim of actual innocence is cognizable by way of a petition for a writ of habeas corpus, even in the absence of proof by the petitioner of an antecedent constitutional violation that affected the result of his criminal trial.” Such a claim is known as a Treestanding claim of actual innocence. Miller v. Commissioner of Correction, 242 Conn. 745, 788 n.28, 700 A.2d 1108 (1997). In Summerville, however, it was not necessary for us to reach the question of “the legal standard [of persuasion] that must be met by a habeas corpus petitioner claiming actual innocence in order to gain a new trial at which his guilt or innocence will again be determined . . . .” Summerville v. Warden, supra, 432.

Thereafter, in Miller v. Commissioner of Correction, supra, 242 Conn. 745, we resolved the question that we had left unanswered in Summerville. We held “that the proper standard for evaluating a freestanding claim of actual innocence, like that of the petitioner, is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence — both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime.” Id., 747.

In so holding, however, “we assume [d] without deciding that the petitioner’s claim must be based on ‘new evidence,’ that is, evidence that is not cumulative, was not available to the petitioner at his criminal trial, and could not have been discovered by him at that time through due diligence. See Summerville v. Warden, supra, 229 Conn. 426.” Miller v. Commissioner of Correction, supra, 242 Conn. 789 n.29. We engaged in that assumption for three explicitly stated reasons: “(1) the habeas court applied that requirement to the petitioner in [that] case, and determined that the petitioner’s evidence met that requirement; (2) the petitioner agreed that this should be one of the components of his burden; and (3) the parties [did] not dispute that the petitioner’s evidence is newly discovered.” (Emphasis in original.) Id., 789-90 n.29.

The certified question in the present case is very important — to habeas corpus petitioners, to the state as the respondent to such petitions, and to the judicial system in general. Our final answer will have serious implications for all three groups. Furthermore, it is a very difficult question, with powerful and appealing arguments on both sides.

When faced with a question of this magnitude and difficulty, a court performs its function best when it is presented with a concrete factual situation that compels it to focus on those facts and the rule of law that applies to them because the outcome of the case is likely to depend on the answer to the question. To be sure, there are times when we have considered questions that did not absolutely need to be answered by the facts of the case at hand. Undoubtedly, there will be others as well. When, however, we realize that we are confronted with a case involving a legal question of the order of magnitude of the nature of the evidence that the law requires a habeas corpus petitioner to produce in order to prove his actual innocence, prudence strongly suggests that, if possible, we postpone our determination until we are presented with facts that squarely and necessarily require us to address the question. We are more likely to answer the question soundly when the actual outcome of the case is likely to depend on the answer to the legal question. This is not such a case.

The habeas court rejected the claim of actual innocence on its merits. The Appellate Court did not review that determination. Thus, there is as yet no adjudication in this case suggesting that there is a substantial basis for the petitioner’s claim of actual innocence. Moreover, our review of the record does not suggest that, independent of any such adjudication, there is such a substantial basis in this case. It would, therefore, be prudent for us to await a case in which there is a substantial basis for the claim of actual innocence. When and if we are presented with such a case, we will undertake to decide the question of the “new evidence” requirement in that context because that will give us a compelling context in which to resolve the question. Therefore, we conclude that this appeal should be dismissed on the ground that certification to appeal was improvidently granted.

We reiterate that, as we indicated in Miller v. Commissioner of Correction, supra, 242 Conn. 789-90 n.29, we have not decided whether a habeas petitioner’s claim of actual innocence must be based on new evidence, and that, therefore, it should be regarded as an open question in our habeas jurisprudence. We also reiterate that, just as a denial by us of certification to appeal from a judgment of the Appellate Court in any given case should not be understood as either approval or disapproval of the opinion of that court; State v. Doscher, 172 Conn. 592, 376 A.2d 359 (1977); similarly, a dismissal of a certified appeal on the ground that certification was improvidently granted should not be understood as either approval or disapproval of the decision from which certification to appeal was originally granted.

The appeal is dismissed.

In this opinion NORCOTT and KATZ, Js., concurred.

BERDON, J.,

dissenting. The majority of this court refuses to answer the question that we certified for our review: whether “a habeas corpus petitioner alleging his innocence must show that his claim of innocence is sustained by newly discovered evidence?” Clarke v. Commissioner of Correction, 239 Conn. 945, 686 A.2d 120 (1996). In my view, the heritage and purpose of the writ of habeas corpus compel us to answer this question in the negative. Although my colleagues in the majority claim that they have not reached this issue, in fact they have decided to send the following, unmistakable message to trial courts: refuse to hear a habeas petitioner’s claim that he is actually innocent unless he proffers evidence that satisfies two criteria: (1) it is newly discovered; and (2) it “could not have been discovered earlier by the exercise of due diligence.” (Internal quotation marks omitted.) Clarke v. Commissioner of Correction, 43 Conn. App. 374, 379, 682 A.2d 618 (1996). My colleagues have managed to send this message by the simple expedient of declining to displace the Appellate Court’s decision in this case, which adds another precedent to the habeas jurisprudence that the Appellate Court began in Williams v. Commissioner of Correction, 41 Conn. App. 515, 527, 677 A.2d 1 (1996), appeal dismissed, 240 Conn. 547, 692 A.2d 1231 (1997).

The majority is technically accurate to claim that it has not decided the issue that we certified. As a practical matter, however, this claim is entirely incorrect. By leaving the Appellate Court’s decisions in Clarke and Williams in place, the habeas trial courts will be required to employ the standard that the Appellate Court has set forth. In this manner, the majority is spared the effort of justifying its decision. Quite simply, I agree with Justice McDonald’s dissent that “the freedom of those who are actually innocent and wrongly incarcerated” requires us to answer the question that we certified.

If there are “powerful and appealing arguments” in support of the regime created by the Appellate Court— as the majority claims that there are — I cannot imagine what they might be. It is apparent to me that we must permit a habeas petitioner an opportunity to be heard when there exists material evidence that he is innocent, no matter when the evidence was discovered or whether it could have been discovered earlier by the exercise of due diligence. A liberal and nontechnical standard is required in order to protect against “the injustice that results from the conviction of an innocent person [a concern that] has long been at the core of our criminal justice system. That concern is reflected, for example, in the ‘fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.’ In re Winship, 397 U.S. 358, 372 [90 S. Ct. 1068, 25 L. Ed. 2d 368] (1970) (Harlan, J., concurring). See also T. Starkie, Evidence 756 (1824) (‘The maxim of the law is . . . that it is better that ninety-nine . . . offenders should escape, than that one innocent man should be condemned’). See generally Newman, Beyond ‘Reasonable Doubt,’ 68 N.Y.U. L. Rev. 979, 980-981 (1993).” Schlup v. Delo, 513 U.S. 298, 325, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995).

The majority is unable to articulate any of the allegedly “powerful and appealing arguments” that cut in favor of denying an innocent man his right to rely upon the Great Writ. Nevertheless, it is clear to me that the majority is perfectly content with the Appellate Court’s decisions in Clarke and Williams. This is the only possible explanation for the majority’s refusal to address the question that we certified.

The Appelate Court’s rule will have a devastating impact upon innocent defendants, particularly if they are poor. It is one of the grave inequities of our system of criminal justice that acquittal comes with a price tag that many defendants cannot afford. Our public defenders labor under Sisyphean caseloads; it is often not humanly possible for them to exercise what a court may — with the benefit of hindsight — elect to characterize as “due diligence.” As a result, there exists the harrowing possibility that a demonstrably innocent person will be incarcerated or even executed.

The regime created by the Appellate Court and endorsed by the majority of this court tolerates the following sequence of events. A citizen is accused of committing a capital offense. Exculpatory evidence exists that — if brought to light — would conclusively demonstrate that the defendant is an innocent man unjustly accused. The public defender fails to discover this evidence. The defendant is convicted and receives a capital sentence. Eventually, the habeas court considers the exculpatory evidence, and is persuaded by it. Nevertheless, the court cannot grant the writ, because the exculpatory evidence could have been discovered earlier by the exercise of due diligence. Because of a blunder by counsel, the defendant — an innocent man — is executed for a crime that he did not commit, even though the habeas court believed that he was innocent.

The Appellate Court’s jurisprudence is simply outrageous. It flays the flesh from the Great Writ, and ignores its fundamental purpose: to insure that justice is done. “The very nature of the writ demands that it be administered with the initiative and flexibility to insure that miscarriages of justice within its reach are surfaced and corrected. . . . Courts ought not to suffocate the writ in stifling formalisms or hobble its effectiveness with the manacles of arcane and scholastic procedural requirements.” (Citation omitted; internal quotation marks omitted.) Valeriano v. Bronson, 209 Conn. 75, 97, 546 A.2d 1380 (1988) (Shea, J., concurring). As previously discussed, “[a] democratic society such as ours . . . has an important interest in assuring that innocent persons are not put to death or deprived of their liberty. That assurance is, quite simply, what the writ of habeas corpus is all about. The Great Writ cuts through all forms and goes to the very tissue of the structure. It comes in from the outside, not in subordination to the proceedings, and although every form may have been preserved opens the inquiry whether they have been more than an empty shell. Frank v. Mangum, 237 U.S. 309, 346, 35 S. Ct. 582, 59 L. Ed. 969 (1915) (Holmes, J., dissenting). In Bunkley v. Commissioner of Correction, 222 Conn. 444, 460-61, 610 A.2d 598 (1992), this court held that the writ is to serve as a bulwark against convictions that violate fundamental fairness or involve a miscarriage of justice. . . . Today’s decision reduces this great bulwark to a sieve.” (Internal quotation marks omitted.) Summerville v. Warden, 229 Conn. 397, 443, 641 A.2d 1356 (1994) (Berdon, J., dissenting).

Yet again, the majority continues its assault on the writ of habeas corpus. I cannot say that this comes as a surprise. As I pointed out in my concurring and dissenting opinion in Miller v. Commissioner of Correction, 242 Conn. 745, 810-12, 700 A.2d 1108 (1997): “The court’s decision today signals the continued evisceration of the writ of habeas corpus, the ‘Great Writ’ of liberty. Indeed, since the time that I expressed ‘my concern on the direction of the majority with regard to the future of the great protector of liberty — the writ of habeas corpus’; Safford v. Warden, 223 Conn. 180, 205, 612 A.2d 1161 (1992) (Berdon, J., concurring); this court’s jurisprudence has consistently undermined the Great Writ. See Summerville v. Warden, supra, 229 Conn. 431 (rejecting standard of proof in habeas proceedings that, ‘considering the evidence and claims now brought before [the habeas corut], together with the evidence produced at the original trial, there is a probability of a different result’ . . .); Carpenter v. Meachum, 229 Conn. 193, 202, 640 A.2d 591 (1994) (holding that General Statutes § 52-273, which deprives this court of subject matter jurisdiction over writ of error brought to review denial of habeas petition after habeas court has denied certification to appeal, is not unconstitutional); Simms v. Warden, 229 Conn. 178, 181-85, 640 A.2d 601 (1994) (holding that this court does not have subject matter jurisdiction over writ of error brought to review denial of petition of habeas corpus after habeas court has denied certification to appeal); Jackson v. Commissioner of Correction, 227 Conn. 124, 131-35, 629 A.2d 413 (1993) (holding that in order for habeas petitioner to be entitled to review of claim not raised on direct appeal, he must show that some objective factor external to defense caused procedural default and that default was prejudicial, thereby abandoning former rule that procedurally defaulted claims were reviewable in habeas proceedings so long as petitioner had not deliberately bypassed his right to review of these claims); Bunkley v. Commissioner of Correction, [supra, 222 Conn. 454] (holding that in order to prevail on claim of ineffective assistance of appellate counsel, habeas petitioner must show not only that his appeal would have been sustained but for counsel’s deficient performance, but also that there is reasonable probability that trial verdict would have been different); Johnson v. Commissioner of Correction, 218 Conn. 403, 411-19, 589 A.2d 1214 (1991) (abandoning ‘deliberate bypass’ standard in favor of ‘cause and prejudice’ standard for claims not raised at trial). Because the right to petition for a writ of habeas corpus is protected by our state constitution; see Conn. Const., art. I, § 12; the majority does indirectly what it could not do directly. In other words, instead of a direct assault, the majority cripples the Great Writ’s effectiveness so that, as a result, it is nothing more than a paper tiger.” (Emphasis in original.)

Unlike my colleagues in the majority, Chief Justice William Rehnquist would hold that our state constitution requires a liberal and expansive habeas jurisprudence. “Chief Justice Rehnquist [has] explained [that] . . . the federal courts are limited by federalism concerns and by the traditional deference paid to the states in matters of criminal process. [Herrera v. Collins, 506 U.S. 390, 400-402, 407, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993)]. Therefore, a claim of actual innocence based on newly discovered evidence is not a ground for federal habeas relief ‘absent an independent constitutional violation occurring in the underlying state criminal proceeding’; id., 400; because ‘ffjederal courts are not forums in which to relitigate state trials.’ . . . Id., 401. According to Chief Justice Rehnquist, the federal courts do not have jurisdiction to grant habeas relief for a claim of actual innocence unless the evidence of innocence is so overwhelming that it would be unconstitutional not to grant the petitioner a new trial. Id., 417. State courts face no such limitation.” (Emphasis in original.) Summerville v. Warden, supra, 229 Conn. 442 (Berdon, J., dissenting).

I recognize that granting a new trial to a petitioner who previously has been convicted may impose substantial costs on society. Memories fade, and witnesses become unavailable, leaving the state with a burden that is not inconsiderable. But these costs must be viewed through the following lens: a petitioner can obtain an order for a new trial only if he persuades the habeas court that he is innocent. Furthermore, our “concern about the injustice that results from the conviction of an innocent person has long been the core of our criminal justice system.” Schlup v. Delo, supra, 513 U.S. 325. The writ — which is protected by both our state constitution and the United States constitution — “furnishes the strongest security for the liberty of the citizen, and constitutes the most prominent distinction between a free and absolute government.” 1 Z. Swift, A Digest of the Laws of the State of Connecticut (1822) p. 568. Unfortunately, the majority burdens the writ of liberty with heavy procedural sandbags, thus undermining its effectiveness and jeopardizing the liberty of us all.

The majority of this court does not share my vision that a robust jurisprudence of the writ of habeas corpus is necessary to prevent the gravest injustice known to modem law. I can only conclude that my colleagues are less disturbed than I am by the specter of an innocent person being deprived of his liberty or put to death.

Accordingly, I dissent.

MCDONALD, J.,

dissenting. I do not agree that we may avoid answering the question whether a claim of actual innocence under Miller v. Commissioner of Correction, 242 Conn. 745, 700 A.2d 1108 (1997), must be supported by newly discovered evidence simply because the petitioner’s claim of actual innocence does not appear to be “substantial.”

I believe that the freedom of those who are actually innocent and wrongly incarcerated and the public safety require us to answer this question now.

Accordingly, I respectfully dissent from the majority’s dismissal of the petitioner’s appeal on the ground that certification was improvidently granted.

       We granted certification to appeal limited to the following issue: “Did the Appellate Court properly conclude that a habeas corpus petitioner alleging his innocence must show that his claim of innocence is sustained by newly discovered evidence?” Clarke v. Commissioner of Correction, 239 Conn. 945, 686 A.2d 120 (1996).

       General Statutes § 21a-278 provides: “(a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person one or more preparations, compounds, mixtures or substances containing an aggregate weight of one ounce or more of heroin, methadone or cocaine or an aggregate weight of one-half gram or more of cocaine in a free-base form or a substance containing five milligrams or more of lysergic acid diethylamide, except as authorized in this chapter, and who is not, at the time of such action, a drug-dependent person, shall be imprisoned for a minimum term of not less than five years nor more than twenty years; and, a maximum term of life imprisonment. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.
      “(b) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

       General Statutes § 21a-277 provides: “(a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.
      “(b) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance, except a narcotic substance, or a hallucinogenic substance other than marijuana, except as authorized in this chapter, may, for the first offense, be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned; and, for each subsequent offense, may be fined not more than one hundred thousand dollars or be imprisoned not more than fifteen years, or be both fined and imprisoned.
      “(c) No person shall knowingly possess drug paraphernalia in a drug factory situation as defined by subdivision (20) of section 21a-240 for the unlawful mixing, compounding or otherwise preparing any controlled substance for purposes of violation of this chapter.
      “(d) As an alternative to the sentences specified in subsections (a) and (b) of this section, the court may sentence the person to the custody of the Commissioner of Correction for an indeterminate term not to exceed three years or the maximum term specified for the offense, whichever is the lesser, and, at any time within such indeterminate term and without regard to any other provision of law regarding minimum term of confinement, the Commissioner of Correction may release the convicted person so sentenced subject to such conditions as he may impose including, but not limited to, supervision by suitable authority. At any time during such indeterminate term, the Commissioner of Correction may revoke any such conditional release in his discretion for violation of the conditions imposed and return the convicted person to a correctional institution.”

       The petitioner also claimed ineffective assistance of counsel. The habeas court rejected that claim on its merits, and that question is not before us in this appeal.

       General Statutes § 52-470 provides: “(a) The court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments therein, and inquire fully into the cause of imprisonment, and shall thereupon dispose of the case as law and justice require.
      “(b) No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the Supreme Court or Appellate Court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

       We also noted that, although we recently had certified for appeal the specific question of whether a freestanding claim of actual innocence was required to be based on new evidence; see Williams v. Commissioner of Correction, 240 Conn. 547, 548, 692 A.2d 1231 (1997); we subsequently dismissed that appeal as improvidently granted because the petitioner in that case ultimately agreed with the “new evidence” requirement. Miller v. Commissioner of Correction, supra, 242 Conn. 789-90 n.29.

       In this connection, we thoroughly have reviewed: (1) the entire transcript of the habeas corpus hearing; (2) the entire transcript of the petitioner’s criminal trial, which he introduced as an exhibit in the habeas hearing; (3) the habeas court’s memorandum of decision; (4) the briefs filed in the Appellate Court; and (5) the opinion of the Appellate Court.

       This is not the first time that the majority has employed this tactic. In Summerville v. Warden, 229 Conn. 397, 641 A.2d 1356 (1994), the majority technically did not render a definitive holding. Nevertheless, the court functionally issued the following instruction to trial courts: “[A] habeas petitioner claiming actual innocence would have to make a truly persuasive demonstration of actual innocence . . . the threshold showing . . . [is] extraordinarily high.” (Internal quotation marks omitted.) Id., 442 (Berdon, J., dissenting). Just three years later, the court expressly held that the “habeas court first must be convinced by clear and convincing evidence that the petitioner is actually innocent”; Miller v. Commissioner of Correction, 242 Conn. 745, 794, 700 A.2d 1108 (1997); and then must determine that no reasonable fact finder would have found him guilty. Id., 800. It is far from alarmist to fear that the majority will soon enshrine its decision today in an express holding.

       Even if the majority were to one day reject the Appellate Court’s current jurisprudence, innocent people could well remain incarcerated for years before that day comes.

       “Of course both the constitution of Connecticut and the constitution of the United States . . . contain guarantees . . . the effect of which [are] that any person may at any time bring the writ claiming an illegal confinement.” (Internal quotation marks omitted.) Iovieno v. Commissioner of Correction, 222 Conn. 254, 260, 608 A.2d 1174 (1992), overruled in part on other grounds, 242 Conn. 689, 699 A.2d 1003 (1997).


author: NORCOTT, J.

text:
    JACKIE CASEY v. NORTHEAST UTILITIES ET AL.
    (SC 16009)
    Borden, Norcott, Palmer, McDonald and Peters, Js.

      Argued March 24
    officially released June 29, 1999

      Nancy R. Sussman, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellant (defendant second injury fund).

      Richard T. Stabnick, for the appellee (plaintiff).
   Opinion

NORCOTT, J.

The dispositive issue in this appeal is whether the defendant second injury fund (fund), may be ordered to pay penalties for failing to make timely payments pursuant to General Statutes § 31-303. The fund appeals from a decision of the compensation review board (board) affirming an order issued by a workers’ compensation commissioner (commissioner) directing the fund to pay a penalty on a certain payment to the plaintiff, Jackie Casey, which the commissioner found to be untimely under § 31-303. We affirm the decision of the board.

The facts are not in dispute. On May 18, 1988, the plaintiff suffered a compensable back injury while employed by the named defendant, Northeast Utilities (employer). The plaintiff had suffered a spinal cord injury prior to his 1988 injury. Because the fund had accepted that the spinal cord injury materially and substantially had exacerbated the plaintiff’s 1988 injury, the claim for the 1988 injury was transferred to the fund. On May 24, 1995, a commissioner found that the plaintiff had been and continued to be totally disabled since May 18, 1988, and accordingly issued a finding and an award by which he ordered the fund to pay the plaintiff temporary total disability benefits starting from the 1988 date of injury. The employer and the fund were parties to these proceedings. On July 21, 1995, fifty-nine days after the May 24, 1995 award of benefits, the fund mailed the plaintiff a check in the amount of $21,336.32. That amount represented the plaintiffs temporary total disability benefits through July 22,1995.

Because the fund had made its payment more than ten days from the date of the award of benefits, the plaintiff sought to have a penalty imposed on the fund pursuant to § 31-303. Following a hearing, another commissioner found that $20,703.52 of the $21,336.32 payment was late under § 31-303, and assessed a late payment penalty of 20 percent against that amount. Accordingly, the fund was ordered to pay $4140.70 to the plaintiff pursuant to § 31-303. The board affirmed the commissioner’s order, and the fund then appealed the decision of the board.

The fund claims that the board’s upholding of the imposition of the penalty was improper because: (1) § 31-303 imposes a deadline on the fund where payments are due under a “fully executed agreement,” but imposes no deadlines on the fund where payments are to be made under an award; (2) § 31-303 assesses penalties for late payments against employers but not against the fund; and (3) § 31-303 imposes penalties only on untimely periodic payments but not on untimely lump sum payments. We disagree.

The issues in this appeal require that we interpret § 31-303. Accordingly, we begin by setting out the applicable standard of review. “General Statutes § 31-278 sets forth the powers and duties of commissioners. Pursuant to that section, commissioners ‘shall have all powers necessary to enable [them] to perform the duties imposed upon [them] by the provisions of [the Workers’ Compensation Act (act)],’ and each commissioner is directed to ‘hear all claims and questions arising under [the act] ....’” Hunnihan v. Mattatuck Mfg. Co., 243 Conn. 438, 444-45, 705 A.2d 1012 (1997). Generally, “[o]ur review of an agency’s decision on questions of law is limited by the traditional deference that we have accorded to that agency’s inteipretation of the acts it is charged with enforcing.” Police Dept. v. State Board of Labor Relations, 225 Conn. 297, 300, 622 A.2d 1005 (1993). We do not, however, accord special deference to the agency’s decision when that decision involves “a question of law [that] has not previously been subject to judicial scrutiny.” (Internal quotation marks omitted.) Duni v. United Technologies Corp., 239 Conn. 19, 25, 682 A.2d 99 (1996).

“In interpreting statutes, we are guided by ‘well established tenets of statutory construction. [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Furthermore, [w]e presume that laws are enacted in view of existing relevant statutes . . . and that [statutes are to be interpreted with regard to other relevant statutes because the legislature is presumed to have created a consistent body of law.’ ” Hunnihan v. Mattatuck Mfg. Co., supra, 243 Conn. 444.

“We have previously recognized that our construction of the [act] should make every part operative and harmonious with every other part insofar as is possible .... Mingachos v. CBS, Inc., 196 Conn. 91, 104, 491 A.2d 368 (1985). In applying these principles, we are mindful that the legislature is presumed to have intended a just and rational result. Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991).” (Internal quotation marks omitted.) Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 391, 618 A.2d 1340 (1993). With these principles in mind, we address the issues raised in this appeal.

The fund first claims that, under § 31-303, it is obligated to make payments within ten business days only from the date of the receipt of a fully executed agreement. Accordingly, because the payment in this case was due under an award, the fund argues that the board improperly concluded that the fund’s payment to the plaintiff was untimely. We are not persuaded.

“It is an axiom of statutory construction that legislative intent is to be determined by an analysis of the language actually used in the legislation. Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 666, 560 A.2d 975 (1989).” Vaillancourt v. New Britain Machine/Litton, supra, 224 Conn. 391. We, therefore, begin our analysis of this issue with the language of § 31-303.

Section 31-303 provides that “[p]ayments agreed to under a voluntary agreement shall commence on or before the tenth day from the date of agreement. Payments due under an award shall commence on or before the tenth day from the date of such award. Payments due from the Second Injury Fund shall be payable on or before the tenth business day after receipt of a fully executed agreement. Any employer who fails to pay within the prescribed time limitations of this section shall pay a penalty for each late payment, in the amount of twenty per cent of such payment, in addition to any other interest or penalty imposed pursuant to the provisions of this chapter.” (Emphasis added.) The fund contends that because the statute places an express time limitation only on payments due from the fund for fully executed agreements, there is no time limitation on payments due from the fund pursuant to awards. We do not agree.

We first note that the practical result of the fund’s interpretation would be a statutory regime where payments due under a fully executed agreement would be due within a certain period of time, but payments due under an award would be subject to no time restraints. There appears to be no practical difference, however, between payments that have become due under a fully executed agreement and those due under an award. “The unreasonableness of the result produced by one among alternative possible interpretations of a statute is reason for rejecting that interpretation in favor of another which would produce a reasonable result.” State v. Campbell, 180 Conn. 557, 563, 429 A.2d 960 (1980). We, therefore, reject the fund’s suggestion that it may be liable for a penalty only for untimely payments due under a fully executed agreement.

The better approach to analyzing § 31-303 is to focus on the practical implication of its application where payments have become due under an award to determine whether, in the context of imposing time limitations, there are any relevant differences between payments due from the fund under an award and those due under a fully executed agreement, such that the fund necessarily would have to be immune from time limitations under § 31-303. It is important to note that the first three sentences of § 31-303 are concerned with setting time limitations. Under § 31-303, the time period for payments due under a fully executed agreement begins to run from the date of the receipt of the agreement, whereas payments due under an award must be received ten days from the date the award is granted. Both formulas include a reference point from which the time period is calculated.

The reference point from which the time period for payments under a fully executed agreement is calculated is the date of the receipt of that agreement by the fund. Common sense would lead one to conclude that the receipt date has been set as the reference date because it is on that date that the fund has definite notice of its obligations. On the other hand, § 31-303 provides only that “[p]ayments due under an award shall commence on or before the tenth day from the date of such award,” and does not set a different reference date for calculation of a due date for payments due from the fund. Indeed, where payments are due under an award, that statute does not distinguish between situations involving payments due from an employer, its insurer or the fund. This lack of specificity in the statute is, however, of no moment because, in practice, the fund will receive notice of its obligation when an award is granted, just as an employer will. Hence, the fund and the employers are not in different positions and, therefore, need not be treated differently under the statute.

Under General Statutes § 31-355 (a), the commissioner must “give notice to the Treasurer of all hearing of matters which may involve payment from the Second Injury Fund, and may make an award directing the Treasurer to make payment from the fund.” Therefore, where its interests are concerned, the fund is notified to attend. See Regs., Conn. State Agencies § 31-354-12. Accordingly, where an award is concerned, the fund receives notice of its obligations on the date the award is granted. It follows that because the fund receives notice and may attend hearings where its interests are implicated, the fund is in no different a position than an employer that has become obligated to pay workers’ compensation benefits pursuant to an award. Hence, there would have been no apparent reason for the legislature to make a distinction between an employer and the fund where an award is concerned.

The fund has argued that because § 31-303 provides that “[p]ayments due from the Second Injury Fund shall be payable on or before the tenth business day after receipt of a fully executed agreement,” but also provides that “[pjayments agreed to under a voluntary agreement shall commence on or before the tenth day from the date of the agreement,” the legislature intended to impose a time limitation on the fund only where payments are due pursuant to a fully executed agreement. According to the fund, if the statute is read any other way, the part of the statute that specifically refers to the fund will be rendered superfluous. The fund’s argument is misdirected because it does not address the actual issue before this court in this appeal. The fund’s argument essentially presents a different question of law that need not be resolved in this case.

In the present case, a penalty was imposed because the fund’s payment due under an award was untimely under § 31-303. The actual issue before this court is, therefore, whether the fund is obligated to meet the time limitations set out in § 31-303 for payments due pursuant to an award. Any analysis conducted to determine the statutory application of the time limitation imposed upon payments due from the fund pursuant to a voluntary agreement, and the relationship of such application to time limitations imposed on payments due from fully executed agreements, will be purely academic, and will not resolve the issue here.

Nevertheless, without actually construing the precise meaning of the phrases, “voluntary agreement” and “fully executed agreement,” we note that the fund, as well as employers, may enter into such agreements, which statutorily are labeled as voluntary agreements. See General Statutes § 31-353 (applicable to agreements between fund and employee); General Statutes § 31-296 (applicable to agreements between employer and employee). Pursuant to those statutes, both the fund and employers may agree to settle a claim, and that agreement becomes effective upon approval of the commissioner.

The fund also may become obligated to provide compensation to the injured employee upon a transfer pursuant to General Statutes § 31-349. The transfer may be accomplished through submission of an approved voluntary agreement between the employer and the employee. See General Statutes § 31-349 (b). Where there is a voluntary agreement between the fund and an injured employee, the fund becomes notified of its obligation when the commissioner approves the agreement between the two parties. On the other hand, the fund may have no knowledge of an approved voluntary agreement between the employer and the injured employee until it has received the agreement, perhaps when there is an attempt to transfer liability pursuant to § 31-349 (b). The apparent reason for the inclusion of a formula that calculates a time limitation from the date on which a fully executed agreement is received by the fund is to account for the latter circumstances.

We also note that the foregoing construction of the first and the third sentences of § 31-303 is consistent with the analytic framework that we previously employed in the resolution of the issue. That framework, in general terms, is based on the proposition that time limitations, as set forth in § 31-303, are calculated from a reference point. The reference points chosen by the legislature in this statute appear to have been set from the date on which the fund has notice of its obligation to make payments to an injured employee. We, therefore, are not persuaded that because § 31-303 does not specifically obligate the fund to make payments within a specified time where payments are due under an award, the legislature intended to immunize the fund from a time limitation under such circumstances. Accordingly, we conclude that § 31-303 imposes a time limitation upon the fund, as well as upon employers, for making payments pursuant to an award.

The fund next claims that it was improper for the board to impose a penalty on the fund due to its untimely payment under § 31-303, because the penalty provision of § 31-303 applies only to employers, and not to the fund. We disagree. Because the fund essentially stands in the shoes of the employer for purposes of payment of compensation benefits to the injured employee, we conclude that the penalty provision of § 31-303 is equally applicable to the fund.

The penalty provision of § 31-303 provides that “[a]ny employer who fails to pay within the prescribed time limitations of this section shall pay a penalty for each late payment, in the amount of twenty per cent of such payment, in addition to any other interest or penalty imposed pursuant to the provisions of this chapter.” “An obvious purpose of [a] penalty provision [in a workers’ compensation system] is to induce prompt payment of legitimate claims and to protect claimants against unnecessary and unjustifiable delays.” Brantley v. A D H Building Contractors, Inc., 215 So. 2d 297, 298 (Fla. 1968); see also Masi v. A. Gasbarro & Sons, Inc., 103 R.I. 136, 139, 235 A.2d 341 (1967) (holding that penalty provision of workers’ compensation system “was enacted to insure the prompt regular payment of weekly compensation benefits due an employee”). The legislative history of the penalty provision of § 31-303 supports this concept. Making certain that an injured employee will have prompt access to workers’ compensation benefits is also a fundamental aspect of Connecticut’s workers’ compensation system.

“Connecticut first adopted a statutory scheme of workers’ compensation in 1913. The purpose of the [act] . . . General Statutes § 31-275 et seq.; is to provide compensation for injuries arising out of and in the course of employment, regardless of fault. Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968). Under the statute, the employee surrenders his right to bring a common law action against the employer, thereby limiting the employer’s liability to the statutory amount. ... In return, the employee is compensated for his or her losses without having to prove liability. . . . In a word, these statutes compromise an employee’s right to a common law tort action for work related injuries in return for relatively quick and certain compensation.” (Citations omitted; emphasis added; internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 381, 698 A.2d 859 (1997). “The intention of the framers of the act was to establish a speedy, effective and inexpensive method for determining claims for compensation. Taylor v. St. Paul’s Universalist Church, 109 Conn. 737, 147 A. 671 [1929], To carry out that objective, [for instance] the provisions of the act allow a period of ten days in which to appeal the compensation commissioner’s award. General Statutes § 31-301.” (Emphasis added.) Chieppo v. Robert E. McMichael, Inc., 169 Conn. 646, 653, 363 A.2d 1085 (1975). The workers’ compensation system is also designed to minimize the adverse effects that administrative delays could have on the financial status of an injured employee. See, e.g., General Statutes § 31-301 (f). An injured employee who may not be able to earn a living due to temporary or permanent disabilities caused by his injuries faces grim economic hardships that will be aggravated if there is delay in the availability of compensation. Hence, promptness in providing compensation is a key factor in alleviating the severity of an injured employee’s financial predicament.

Where compensation of an injured employee is concerned, the fund and the employer perform similar functions in many respects. “By following the prescribed procedures, the employer may limit his liability to payments due in the first 104 weeks of the employee’s second disability, after which the [fund] assumes responsibility for compensation and medical treatment.” Jacques v. H. O. Penn Machinery Co., 166 Conn. 352, 358, 349 A.2d 847 (1974); see also Fimiani v. Star Gallo Distributors, Inc., 248 Conn. 635, 651, 729 A.2d 212 (1999). This demonstrates two coexisting functions of the fund: to provide adequate compensation to injured employees, while relieving employers from the undue hardship of providing compensation for subsequent injuries to an injured employee.

The similarity between the roles that an employer and the fund occupy under Connecticut’s workers’ compensation system is not, however, limited to their roles as providers of compensation. For example, pursuant to § 31-353, the fund may enter into a voluntary agreement with an injured employee in order to settle the employee’s claim. This section is similar to § 31-296, pursuant to which an employer may enter into a voluntary agreement with the injured employee. Moreover, pursuant to General Statutes § 31-352, the fund has the same statutory right as an employer, or an employee; see General Statutes § 31-293; to seek redress from any party whose actions have caused workers’ compensation benefits to be paid to the injured employee. These examples illustrate that, where the employers and the fund are functionally similar, they are treated similarly under our workers’ compensation system. This proposition is in harmony with our prior conclusion that the fund’s obligation to provide timely compensation pursuant to an award is no different from an employer’s obligation to do the same. We often have interpreted workers’ compensation laws liberally in order to effectuate their underlying policies where those policies favor an injured employee. See Muldoon v. Homestead Insulation Co., 231 Conn. 469, 483, 650 A.2d 1240 (1994). In the present case, the general policies advanced by our workers’ compensation system and the penalty provision of § 31-303 are aligned to achieve an important goal: to provide the injured employee with prompt access to compensation. We agree with the board’s observation that “[tjhere is no apparent reason why the legislature would espouse a policy which provides that claimants paid by the [fjund have less of a right to timely payments than those claimants paid by an employer or insurer.” From an injured employee’s point of view, delay in making payments by the fund is as harmful as is delay by an employer. We conclude, therefore, that the penalty provision of § 31-303 is applicable to the second injury fund as well as employers.

The fund argues, however, that the legislative history surrounding the workers’ compensation reform legislation; see Public Acts 1993, No. 93-228; demonstrates that the legislature intended to immunize the fund from penalties because the “overall tenor of the 1993 legislation, of which the § 31-303 penalty provision was a part, was to reduce workers’ compensation costs and reduce the financial burdens of the fund.” (Emphasis in original.) The fund elaborates that because it pays benefits out of a statewide assessment that it imposes upon the employers in this state, the imposition of a penalty indirectly increases the costs to the employers in this state, thus undermining the legislature’s intent to reduce workers’ compensation costs. While the fund is correct in its observation that the legislature, in 1993, took steps to reduce the costs of workers’ compensation benefits in Connecticut; see generally Legislative Program Review and Investigations Committee, Workers’ Compensation: Impact of the 1991 and 1993 Reforms (1995); there is no indication that it intended to achieve that result by allowing the fund to delay payments of benefits when those benefits have become due.

Finally, the fund claims that even if the penalty provision of § 31-303 may be applied to late payments made by the fund, such a penalty may be assessed only against untimely periodic payments, and not against an untimely lump sum payment. The fund argues, therefore, that no penalty should have been assessed against its untimely payment in this case. The fund’s argument is unavailing.

The fund bases its argument on the express language of the penalty provision of § 31-303, which provides that “[a]ny employer who fails to pay within the prescribed time limitations of this section shall pay a penalty for each late payment . . . .” (Emphasis added.) It is important to note that there is a difference between a lump sum payment and simply a sum of money. A lump sum payment is defined as a “single payment in contrast to installments; e.g. single premium payment for life insurance; a single lump sum divorce settlement; or single worker’s compensation payment in lieu of future monthly installment payments.” Black’s Law Dictionary (6th Ed. 1990). The fund mischaracterizes its payment as a lump sum payment because the payment made to the plaintiff appears to have been a sum of periodic payments that had become due. The fund concedes that § 31-303 is applicable to untimely periodic payments. Accordingly, we need not reach the issue of whether the penalty provision of § 31-303 is applicable to lump sum payments in order to conclude that the penalty was assessed properly in this case.

The decision of the board is affirmed.

In this opinion the other justices concurred.

       General Statutes § 31-303 provides: “Payments agreed to under a voluntary agreement shall commence on or bei'ore the tenth day from the date of agreement. Payments due under an award shall commence on or before the tenth day from the date of such award. Payments due from the Second Injury Fund shall be payable on or before the tenth business day after receipt of a fully executed agreement. Any employer who fails to pay within the prescribed time limitations of this section shall pay a penalty for each late payment, in the amount of twenty per cent of such payment, in addition to any other interest or penalty imposed pursuant to the provisions of this chapter.”

       The fund appealed the decision of the board to the Appellate Court. We transferred that appeal to this court pursuant to Practice Book § 4023, now § 65-1, and General Statutes § 51-199 (c).

       The fund became liable to the plaintiff by accepting the transfer of an acknowledgment of the plaintiffs physical condition pursuant to General Statutes (Rev. to 1995) § 31-325. We note for clarity that in 1995, “[cjoncluding that the second injury fund had outlived its usefulness,” the legislature adopted No. 95-277 of 1995 Public Acts (P.A. 95-277) by which it comprehensively revised the fund’s statutory obligations in order to reduce the fund’s financial liabilities. Cece v. Felix Industries, Inc., 248 Conn. 457, 463-64, 728 A.2d 505 (1999); see footnote 8 of this opinion; see also Public Acts 1996, No. 96-242. As a result, General Statutes (Rev. to 1995) § 31-325 was repealed by § 18 of P.A. 95-277, and thus has not been in force as of that act’s effective date of June 29, 1995. See P.A. 95-277, § 19. Public Act 95-277, however, did not amend § 31-303. We further note that the penalty provisions of § 31-303, therefore, remain viable. The fund has not argued that the legislature, by adopting P.A. 95-277, intended to exempt the fund from possible penalties imposed by § 31-303 for the obligations that the fund incurred prior to the effective date of that act as part of its design to reduce the fund’s financial liabilities.

       In a different context, we have analyzed the importance of effectuating a timely notice upon the fund. Upon effectuation of a proper transfer pursuant to General Statutes § 31-349 (b), the fund becomes obligated to make payments of workers’ compensation benefits to the injured employee. But see footnote 8 of this opinion (fund hable only for claims properly transferred on or before July 1,1999). A proper transfer may be effectuated by fulfilling certain statutory requirements. Among others, the employer must submit “copies of all findings, awards and approved voluntary agreements” to the fund “no later than three calendar years after the date of injury or no later than ninety days after completion of payments for the first one hundred and four weeks of disability . . . .” General Statutes § 31-349 (b). “The object of the ninety-day statutory notice is to enable the fund to be apprised promptly of such a claim being made, to obtain a copy of the agreement or award and to have immediate access to all medical reports. Such information is essential to enable the fund to assess promptly its alleged liability and to establish immediately its financial reserves. A further objective is to give the fund a reasonable period of time within which to investigate the claim and to prepare to meet it.” Plesz v. United Technologies Corp., 174 Conn. 181, 188, 384 A.2d 363 (1978). Similarly, the object of allowing the fund ten business days from the date of the receipt of a fully executed agreement before it may become liable for penalties for late payments appears to be to provide a reasonable period of time for the fund to make payments to the claimant, or perhaps take other appropriate actions.

       Section 31-354-12 of the Regulations of Connecticut State Agencies provides: ‘'Payment of compensation shall be paid from the Fund provided:
      “(a) A formal hearing is held and the Second Injury Fund, the Attorney General’s Office, and Workers’ Compensation Department, were noticed to attend.
      “(b) A finding and award is granted against the employer after notice to the employer.
      “(c) Ten days have passed from the date of notice of the award to the employer and the claimant has not received payment and the employer has not instituted an appeal.
      “(d) The claimant requests and is granted a supplemental order of payment against the Fund."

       We have held that the modifier “fully executed” indicates the legislature’s intent to distinguish between an agreement and an agreement that bears such formalities as a signature and the commissioner’s approval. Dos Santos v. F. D. Rich Construction Co., 233 Conn. 14, 24, 658 A.2d 83 (1995).

       General Statutes § 31-349 (b) provides: “As a condition precedent to the liability oí the Second Injury Fund, the employer or its insurer shall: (1) Notify the custodian of the fund by certified mail no later than three calendar year's after the date of injury or no later than ninety days after completion of payments for 1 he first one hundred and four weeks of disability, whichever is earlier, of its intent to transfer liability for the claim to the Second Injury Fund; (2) include with the notification (A) copies of all medical reports, (B) an accounting of all benefits paid, (C) copies of all findings, awards and approved voluntary agreements, (D) the employer’s or insurer’s estimate of the reserve amount to ultimate value for the claim, (E) a two-thousand-dollar notification fee payable to the custodian to cover the fund’s costs in evaluating the claim proposed to be transferred and (F) such other material as the custodian may require. The employer by whom the employee is employed at the time of the second injury, or its insurer, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. Failure on the part of the employer or an insurer to comply does not relieve the employer or insurer of its obligation to continue furnishing compensation under the provisions of this chapter. The custodian of the fund shall, by certified mail, notify a self-insured employer or an insurer, as applicable, of the rejection of the claim within ninety days after receiving the completed notification. Any claim which is not rejected pursuant to this section shall be deemed accepted, unless the custodian notifies the self-insured employer or the insurer within the ninety-day period that up to an additional ninety days is necessary to determine if the claim for transfer will be accepted. If the claim is accepted for transfer, the custodian shall file with the workers’ compensation commissioner for the district in which the claim was filed, a form indicating that the claim has been transferred to the Second Iqjury Fund and the date that such claim was transferred and shall refund fifteen hundred dollars of the notification fee to the self-insured employer or the insurer, as applicable. A copy of the form shall be mailed to the self-insured employer or the insurer and to the claimant. No further action by the commissioner shall be required to transfer said claim. If the custodian rejects the claim of the employer or its insurer, the question shall be submitted by certified mail within thirty days of the receipt of the notice of rejection by the employer or its insurer to the commissioner having jurisdiction, and the employer or insurer shall continue furnishing compensation until the outcome is finally decided. Claims not submitted to the commissioner within said time period shall be deemed withdrawn with prejudice. If the employer or insurer prevails, or if the custodian accepts the claim all payments made beyond the one-hundred-four-week period shall be reimbursed to the employer or insurer by the Second Injury Fund.”

       As a general matter, the liability of the fund has been greatly curtailed. Pursuant to § 31-349 (d), “no injury which occurjred] on or after July 1, 1995, shall serve as a basis for transfer of a claim to the Second Injury Fund under this section. All such claims shall remain the responsibility of the employer or its insurer under the provisions of this section.” Furthermore, General Statutes § 31-349h provides: “All transfers of claims to the Second Injury Fund with a date of injury prior to July 1, 1995, shall be effected no later than July 1,1999. All claims not transferred to the Second Injury Fund, on or before July 1, 1999, shall remain the responsibility of the employer or its insurer.” See also General Statutes § 31-349 (e) and (f) (setting out statutory requirements for preserving claims filed with fund for injuries that occurred prior to July 1, 1995).

       The legislative history of § 31-303 does not indicate that the penalty provision was not intended to be applicable to the fund. The legislative history of § 31-303 only restates the language of that section: “In this bill, and this is one ingredient that I am especially happy is in the amendment we’re about to vote on. There is a 20 [percent] penalty for insurance companies or employers who make late payments of doctor bills or benefits for wage replacement after they have been ordered to be made by the workers’ comp[ensation] commission or after they were part of a voluntary agreement by the employer.
      “In other words, there are many informal and formal hearings at the workers’ compfensation] commission where insurance company lawyers or lawyers promise to make a payment within a few days, or who are ordered to make that payment. If they don’t make the payment . . . there are no effective penalties on the books today. This imposes a 20 [percent] penalty going directly to the claimant for those late payments, plus interest.” 36 H.R. Proc., Pt. 18, 1993 Sess., pp. 6253-54, remarks of Representative Michael P. Lawlor. Representative Lawlor referred to the penalty provision of § 31-303 as: “Imposition of penalties for insurance companies and employers who don’t pay on time those benefits and medical bills that they are obligated to do under the system.” Id., p. 6143.

       General Statutes § 31-301 (f) provides: “During the pendency of any appeal of an award made pursuant to this chapter, the claimant shall receive all compensation and medical treatment payable under the terms of the award to the extent the compensation and medical treatment are not being paid by any health insurer or by any insurer or employer who has been ordered, pursuant to the provisions of subsection (a) of this section, to pay a portion of the award. The compensation and medical treatment shall be paid by the employer or its insurer.”

       General Statutes § 31-353 provides: “If the Treasurer and an injured employee, or his legal representative, reach an agreement in regard to compensation payable under section 31-349, such agreement shall be submitted in writing to the commissioner for his approval and, upon approval, shall remain in effect until otherwise ordered by the commissioner. He may make payment by way of final settlement in any matter concerning the fund, subject to the approval of the commissioner, whenever it is for the best interests of the injured employee.”

       General Statutes § 31-296 provides in relevant part: “If an employer and an injured employee, or in case of fatal injury his legal representative or dependent, at a date not earlier than the expiration of the waiting period, reach an agreement in regard to compensation, such agreement shall be submitted in writing to the commissioner by the employer with a statement of the time, place and nature of the injury upon which it is based; and, if such commissioner finds such agreement to conform to the provisions of this chapter in every regard, he shall so approve it. A copy of the agreement, with a statement of the commissioner’s approval thereof, shall be delivered to each of the parties and thereafter it shall be as binding upon both parties as an award by the commissioner. ...”

       General Statutes § 31-352 provides: “The provisions of section 31-293 shall apply to any payments from the Second Injury Fund and the Treasurer is authorized to bring an action, or join in an action as provided by said section, when he has paid, or by award has become obligated to pay, compensation out of the fund.” General Statutes § 31-293 allows the employer, the injured employee, and in some instances, the fund, to bring an action against a third party to recover.

       General Statutes § 31-293 provides in relevant part: “(a) When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person other than an employer who has complied with the requirements of subsection (b) of section 31-284, a legal liability to pay damages for the injury, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of the injured employee against such person, but the injured employee may proceed at law against such person to recover damages for the injury; and any employer or the custodian of the Second Injury Fund, having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee. If the employee, the employer or the custodian of the Second Injury Fund brings an action against such person, he shall immediately notify the others, in writing, by personal presentation or by registered or certified mail, of the action and of the name of the court to which the writ is returnable, and the others may join as parties plaintiff in the action within thirty days after such notification, and, if the others fail to join as parties plaintiff, their right of action against such person shall abate. In any case in which an employee brings an action against a party other than an employer who failed to comply with the requirements of subsection (b) of section 31-284, in accordance with the provisions of this section, and the employer is a party defendant in the action, the employer may join as a party plaintiff in the action. The bringing of any action against an employer shall not constitute notice to the employer within the meaning of this section. If the employer and the employee join as parties plaintiff in the action and any damages are recovered, the damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of the recovery, after the deduction of reasonable and necessary expenditures, including attorneys’ fees, incurred by the employee in effecting the recovery. The rendition of a judgment in favor of the employee or the employer against the party shall not terminate the employer’s obligation to make further compensation which the commissioner thereafter deems payable to the injured employee. If the damages, after deducting the employee’s expenses as provided in this subsection, are more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse him for his claim, and the excess shall be assessed in favor of the injured employee. No compromise with the person by either the employer or the employee shall be binding upon or affect the rights of the other, unless assented to by him. For the purposes of this section, the claim of the employer shall consist of (1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of the injury. The word ‘compensation’, as used in this section, shall be construed to include incapacity payments to an injured employee, payments to the dependents of a deceased employee, sums paid out for surgical, medical and hospital services to an injured employee, the burial fee provided by subdivision (1) of subsection (a) of section 31-306, payments made under the provisions of sections 31-312 and 31-313, and payments made under the provisions of section 31-284b in the case of an action brought under this section by the employer or an action brought under this section by the employee in which the employee has alleged and been awarded such payments as damages. Each employee who brings an action against a party in accordance with the provisions of this subsection shall include in his complaint (A) the amount of any compensation paid by the employer or the Second Injury Fund on account of the injury which is the subject of the suit and (B) the amount equal to the present worth of any probable future payments which the employer or the Second Ipjury Fund has, by award, become obligated to pay on account of the irqury. Notwithstanding the provisions of this subsection, when any ir\jury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in aperson other than an employer who has complied with the requirements of subsection (b) of section 31-284, a legal liability to pay damages for the injury and the injured employee has received compensation for the injury from such employer, its workers’ compensation insurance carrier or the Second Injury Fund pursuant to the provisions of this chapter, the employer, insurance carrier or Second Injury Fund shall have a lien upon any judgment received by the employee against the party or any settlement received by the employee from the party, provided the employer, insurance carrier or Second Injury Fund shall give written notice of the lien to the party prior to such judgment or settlement.
      “(b) When an injury for which compensation is payable under the provisions of this chapter is determined to be the result of a motor vehicle accident or other accident or circumstance in which a third person other than the employer was negligent and the claim is subrogated by the employer or its workers’ compensation insurance carrier, the insurance carrier shall provide a rate adjustment to the employer’s workers’ compensation policy to reflect the recovery of any compensation paid by the insurance carrier prior to subrogation. . .

       Our review of the record indicates that this claim was not raised before the board. Consequently, there are no specific facts regarding the exact nature of the payment in the record. In his brief, the plaintiff points out that the amount he received “was in fact representative of a stream of payments which had become due to” him. The fund concedes this point. We also note that in imposing the penalty, the commissioner found that the $21,336.32, which was mailed to the plaintiff, only covered payments through July 22,1995. Moreover, the penalty was imposed on $20,703.52 of the total amount, which indicates that the commissioner determined untimeliness based on when each payment was due.