text:
    John C. Wilson III et al. v. Lucille B. Kelley et al.
    (14539)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.

      Argued October 1
    decision released December 8, 1992

      Jeremiah Donovan, with whom was Terry Sablone Donovan, for the appellants (defendants).

      Thomas A. Cloutier, with whom was R. Scott Patterson, for the appellees (plaintiffs).

      Deborah J. Blood and W. Campbell Hudson III filed a brief for the borough of Fenwick as amicus curiae.
   Borden, J.

The dispositive issue in this appeal is whether the plaintiffs’ declaratory judgment action challenging the manner in which their taxable real property had been assessed was barred by the one year statute of limitations provision of General Statutes § 12-119. The named plaintiffs brought a declaratory judgment class action on behalf of most of the taxpayers named on the October 1,1989 grand list of the town of Old Saybrook, against the defendants, Lucille B. Kelley and Olive P. Mulvihill, the town’s assessor and tax collector, respectively. The plaintiffs sought a declaration that the grand list was invalid and an injunction enjoining the defendants from collecting taxes based on that list. The trial court held that the assessor’s failure personally to view and evaluate each real estate parcel listed on the grand list violated General Statutes (Rev. to 1987) § 12-62, and thereby rendered the 1989 revaluations invalid. The defendants appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We now reverse the judgment of the trial court.

The relevant facts are as follows. On March 23,1991, the plaintiffs, acting on behalf of most of the real property owners in the town of Old Saybrook, filed a class action against the defendants seeking a declaratory judgment that the town’s 1989 grand list was invalid as violative of § 12-62. The plaintiffs’ complaint also sought damages, attorney’s fees, a permanent injunction restraining the tax collector from collecting any further real estate taxes based on the 1989 revaluation, and other equitable relief, including a refund of the taxes collected pursuant to the 1989 grand list.

The complaint alleged that the assessor had violated § 12-62 by failing to view personally each and every parcel of real estate listed on the grand list, and by failing to exercise her own independent judgment in setting the assessment values on that list. The defendants admitted that the assessor had not personally viewed every property on the grand list, but asserted that she had properly relied upon the delegation of that duty to S.L.F. Appraisal, Inc., a state-certified revaluation company that had been hired by the assessor to conduct the revaluation. The defendants denied the plaintiffs’ claim that the assessor had failed to exercise her independent judgment in reaching the revaluation figures. The defendants also claimed that the declaratory judgment class action was barred by the statute of limitations or the equitable doctrine of laches.

The trial court held that the 1989 revaluation violated § 12-62 and was therefore void because of the assessor’s reliance on the revaluation company to view each parcel of real estate, and because the assessor had failed to exercise her independent judgment in valuing each parcel. In a supplemental judgment, the trial court: (1) enjoined the tax collector from collecting any taxes based on the 1989 grand list; (2) ordered the assessor to revalue all the parcels in the town and to issue a new grand list by October, 1993; (3) ordered the assessor to base future taxes on the 1988 grand list until the issuance of a new list; (4) ordered the tax collector to credit the plaintiffs’ accounts for any overpayments based on the 1989 grand list; and (5) ordered the defendants to pay $10,000 in attorney’s fees. The trial court also rejected the defendants’ statute of limitations and laches defenses.

The defendants claim that the trial court improperly: (1) interpreted § 12-62 to require town assessors to view personally each parcel of real property in the municipality during a decennial revaluation; (2) concluded that the assessor had not exercised her independent judgment regarding the value of each such parcel; (3) excluded evidence concerning the manner in which other towns conduct revaluations, and the role of the state office of policy and management in regulating revaluation companies and supervising decennial revaluations; (4) held that the plaintiffs’ action was not barred by the one year statute of limitations provision in § 12-119; 5(5) granted the plaintiffs’ request for certain equitable relief; and (6) awarded attorney’s fees. Because we hold that the plaintiffs’ action was barred by the statute of limitations provision of § 12-119, we need not address the defendants’ other claims.

The purpose of a declaratory judgment action, as authorized by General Statutes § 52-29 and Practice Book § 390, is to “secure an adjudication of rights where there is a substantial question in dispute or a substantial uncertainty of legal relations between the parties.” (Emphasis added.) Connecticut Assn. of Health Care Facilities, Inc. v. Worrell, 199 Conn. 609, 613, 508 A.2d 743 (1986). General Statutes § 52-29 (a) requires that a declaratory judgment “declare rights and other legal relations." (Emphasis added.) Similarly, Practice Book § 390 requires that the plaintiff be in danger of a loss or uncertainty “as to his rights or other jural relations.” and that there be a bona fide “issue in dispute or substantial uncertainty of legal relations." (Emphasis added.) Thus, “[declaratory relief is a mere procedural device by which various types of substantive claims may be vindicated.” Luckenbach Steamship Co. v. United States, 312 F.2d 545, 548 (2d Cir. 1963).

Implicit in these principles is the notion that a declaratory judgment action must rest on some cause of action that would be cognizable in a nondeclaratory suit. See Hodgdon v. Campbell, 411 A.2d 667, 669(Me. 1980) (declaratory judgment statutes do “not create a new cause of action; [their] purpose is ‘to provide a more adequate and flexible remedy in cases where jurisdiction already exists’ ”). To hold otherwise would convert our declaratory judgment statute and rules into a convenient route for procuring an advisory opinion on moot or abstract questions; see Anderson v. Southwest Savings & Loan Assn., 117 Ariz. 246, 571 P.2d 1042 (1977); and would mean that the declaratory judgment statute and rules created substantive rights that did not otherwise exist. We decline so to hold.

Consequently, in analyzing whether a declaratory judgment action is barred by a particular statutory period of limitations, a court must examine the underlying claim or right on which the declaratory action is based. Romer v. Leary, 425 F.2d 186, 188 (2d Cir. 1970); Swan v. Board of Higher Education, 319 F.2d 56, 59 (2d Cir. 1963); Luckenbach Steamship Co. v. United States, supra, 548-59; cf. Gannon v. Sanders, 157 Conn. 1, 7, 244 A.2d 397 (1968) (in determining whether plaintiff has standing in a declaratory judgment action, court must look at underlying claim on which action is based). It necessarily follows that if a statute of limitations would have barred a claim asserted in an action for relief other than a declaratory judgment, then the same limitation period will bar the same claim asserted in a declaratory judgment action.

We must, therefore, inquire into the source of the underlying right or claim on which the plaintiffs’ declaratory judgment action is predicated. We first note that the legislature has established two primary methods by which taxpayers may challenge a town’s assessment or revaluation of their real property. First, any taxpayer claiming to be aggrieved by an action of an assessor may appeal, pursuant to General Statutes § 12-111, to the town’s board of tax review. The taxpayer may then appeal, pursuant to General Statutes § 12-118, an adverse decision of the town’s board of tax review to the Superior Court. The second method of challenging an assessment or revaluation is by way of § 12-119. See footnote 1, supra.

In Second Stone Ridge Cooperative Corporation v. Bridgeport, 220 Conn. 335, 597 A.2d 326 (1991), we summarized this two-part statutory scheme for challenging assessments and revaluations. Sections 12-111 and 12-118 provide “a method by which an owner of property may directly call in question the valuation placed by assessors upon his property by an appeal to the board of relief, and from it to the courts. . . . These statutes limit to a short period the time within which the property owner can seek relief under them, and the purpose of this is undoubtedly to prevent delays in the ultimate determination of the amounts a municipality can collect as taxes.” Id., 339, citing Cohn v. Hartford, 130 Conn. 699, 702, 37 A.2d 237 (1944).

“On the other hand, § 12-119 allows a taxpayer one year to bring a claim that the tax was imposed by a town that had no authority to tax the subject property, or that the assessment was ‘manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of [the real] property . . . .’Our case law makes clear that a claim that an assessment is ‘excessive’ is not enough to support an action under this statute. Instead, § 12-119 requires an allegation that something more than mere valuation is at issue. It is this element that distinguishes § 12-119 from its more frequently invoked companion, § 12-118. In Connecticut Light & Power Co. v. Oxford, 101 Conn. 383, 392, 126 A. 1 (1924), we addressed the predecessor statute of § 12-119 and concluded that there were two possible grounds for recovery under the statute: ‘the absolute nontaxability of the property in the municipality where situated, and a manifest and flagrant disregard of statutory provisions.’ Claims under § 12-119 must fall into one of these two categories.

“ ‘The first category in the statute embraces situations where a tax has been laid on property not taxable in the municipality where it is situated . . . .’ E. Ingraham Co. v. Bristol, 146 Conn. 403, 408, 151 A.2d 700, cert. denied, 361 U.S. 929, 80 S. Ct. 367, 4 L. Ed. 2d 352 (1959). . . .

“The second category consists of claims that assessments are ‘(a) manifestly excessive and (b) . . . could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of the property.’ . . . E. Ingraham Co. v. Bristol, [supra, 409]. Cases in this category must contain allegations beyond the mere claim that the assessor overvalued the property. ‘[The] plaintiff . . . must satisfy the trier that [a] far more exacting test’ has been met: either ‘there was misfeasance or nonfeasance by the taxing authorities, or the assessment was arbitrary or so excessive or discriminatory as in itself to show a disregard of duty on their part.’ Mead v. Greenwich, 131 Conn. 273, 275, 38 A.2d 795 (1944). Only if the plaintiff is able to meet this exacting test by establishing that the action of the assessors would result in illegality can the plaintiff prevail in an action under § 12-119. The focus of 12-119 is whether the assessment is ‘illegal.’ Cohn v. Hartford, [supra, 703]; see E. Ingraham Co. v. Bristol, supra, 408 (municipality disregarded the statutes when it taxed real property at 50 percent of its value, personal property at 90 percent and motor vehicles at 100 percent at a time when municipalities were prohibited from assessing property as a percentage of its value).” Second Stone Ridge Cooperative Corporation v. Bridgeport, supra, 339-41.

With this background in mind, we must read the plaintiffs’ complaint requesting declaratory relief as predicated on the substantive rights recognized in § 12-119. Paragraph six of the complaint alleges that “[t]he adoption of the Grand List of real property prepared by the Assessor for the year 1989 was illegal, invalid, and contrary to [the assessor’s] statutory duties . . . .” This claim, therefore, invokes the second part of § 12-119’s requirements, that is, that the assessment “could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property . . . .” The plaintiffs do not dispute this reading of paragraph six of their complaint.

The plaintiffs contend, however, that their declaratory judgment action was nonetheless not predicated on § 12-119 because the complaint does not allege that the assessment values on the 1989 grand list are “manifestly excessive.” We disagree.

First, the plaintiffs’ declaratory judgment action must be viewed as, in substance, a claim for relief under § 12-119 because it would not have been viable unless it rested on an underlying cause of action cognizable in nondeclaratory judgment form, and because it cannot be viewed as an appeal from the board of tax review under § 12-118. Thus, the claim under § 12-119 that a tax be “manifestly excessive” is implied in the plaintiffs’ declaratory judgment action in this case.

Second, if we were to read the plaintiffs’ complaint as making no claim as to the excessiveness of the revaluation, but instead contending solely that the assessor’s methods violated the statutory commands of § 12-62, the plaintiffs would have no standing to maintain the declaratory judgment action. “An action for declaratory judgment is a special proceeding . . . [that] requires the existence of an actual bona fide and substantial question in dispute which requires settlement between the parties.” Kiszkiel v. Gwiazda, 174 Conn. 176, 180-81, 383 A.2d 1348 (1978). “[T]he declaratory judgment procedure may not be utilized merely to secure advice on the law ... or to secure the construction of a statute if the effect of that construction will not affect a plaintiff’s personal rights . . . Horton v. Meskill, 172 Conn. 615, 627, 376 A.2d 359 (1977); see also Gannon v. Sanders, supra, 9 (“ ‘[n]o taxpayer is entitled to seek by declaratory judgment the construction of a statute if the effect of that construction will not affect his personal rights’ ”).

In the absence of some claim that the imposed revaluation of the plaintiffs’ properties on the 1989 list was excessive, the plaintiffs’ personal rights would not have been implicated. An improper method of valuation, standing alone, would not have caused the necessary injury to maintain a declaratory judgment action. Our doctrines of standing and aggrievement obligate us to avoid adjudicating rights in a vacuum.

In light of these considerations, we must read the plaintiffs’ complaint as including both (1) the explicit claim that the revaluation was invalid and contrary to the assessor’s statutory duties, and (2) an implicit claim that the revaluations were manifestly excessive. Accordingly, because the plaintiffs’ claim must be construed to be predicated on § 12-119, we apply the statute’s one year limitation period to the plaintiffs’ declaratory judgment action, and the action is therefore barred. A contrary result could be reached only by ignoring the legislative preference in §§ 12-111, 12-118 and 12-119 for the prompt resolution of challenges to assessments, and the need for the stability of our towns’ tax rolls. “Public policy requires . . . that this court not permit [tax issues] to be the subject of perpetual litigation, at any time, to suit the convenience of the taxpayer.” National CSS, Inc. v. Stamford, 195 Conn. 587, 597-98, 489 A.2d 1034 (1985).

Our decision today is in accord with this court’s treatment of a similar claim in Norwich v. Lebanon, 200 Conn. 697, 708-13, 513 A.2d 77 (1986). In Norwich, the plaintiff brought an action of indebitatus assumpsit to recover money collected under an allegedly illegal assessment approximately six years after the date of the assessment. We held that the plaintiff could not circumvent the time limitations of §§ 12-118 and 12-119 by resorting to the equitable writ of assumpsit because, if “a statute has established a procedure to redress a particular wrong a person must follow the specified remedy and may not institute a proceeding that might have been permissible in the absence of such a statutory procedure.” Id., 708. Although resting on the doctrine of exhaustion of remedies, our decision in Norwich recognized that the legislative purpose behind the limitation periods for challenging tax assessments “would be thwarted if an action for refund of taxes paid upon a disputed assessment could be brought far beyond the time limits for contesting an assessment established by these statutes.” Id., 710. Although the present case was brought as a declaratory judgment action rather than as an action in assumpsit, the same respect for the legislatively recognized need for the prompt resolution of challenges to tax assessments guides us today.

The remaining issue in this case is the form of our rescript. As a general rule, if a statute creates a cause of action that did not exist at common law, the period established for bringing the action is a limitation of the liability itself, and not of the remedy alone. American Masons’ Supply Co. v. F. W. Brown Co., 174 Conn. 219, 224, 384 A.2d 378 (1978). In such a case, if a plaintiff has failed to comply with the limitation period, a court should dismiss the action for lack of subject matter jurisdiction. Orticelli v. Powers, 197 Conn. 9, 15, 495 A.2d 1023 (1985); see also Practice Book § 145. If, however, an action is barred by a statute of limitations period that does not inhere in the action itself, the remedy is not a dismissal but a judgment for the party asserting the bar. See, e.g., Beckenstein v. Potter & Carrier, Inc., 191 Conn. 150, 464 A.2d 18 (1983).

Section 12-119 has been held to be “merely declaratory of existing legal and equitable rights.” Norwich v. Lebanon, supra, 710; Connecticut Light & Power Co. v. Oxford, supra, 391-92. We, therefore, read the limitation period contained in § 12-119 not as a jurisdictional prerequisite, but only as an ordinary statute of limitations. Accordingly, the plaintiffs’ failure to bring the declaratory judgment action within the limitation period did not deprive the trial court of jurisdiction but merely barred the plaintiffs’ declaratory judgment action as untimely.

The judgment is reversed and the case is remanded with direction to render judgment for the defendants.

In this opinion the other justices concurred.

       General Statutes § 12-119 provides: “remedy when property wrongfully assessed. When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set, or that a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner thereof or any lessee thereof whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated. Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation and shall be served and returned in the same manner as is required in the case of a summons in a civil action, and the pendency of such application shall not suspend action upon the tax against the applicant. In all such actions, the superior court shall have power to grant such relief upon such terms and in such manner and form as to justice and equity appertains, and costs may be taxed at the discretion of the court. If such assessment is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes in accordance with the judgment of said court.”

       The named plaintiffs were John C. Wilson III and Hall M. Wilson. Approximately one hundred taxpayers chose to opt out of the certified class.

       At the time the defendants began their decennial revaluation of the parcels on the grand list, General Statutes {Rev. to 1987) § 12-62 (a) provided: “Commencing October 1, 1978, the assessors of all towns, consolidated towns and cities and consolidated towns and boroughs shall, no later than ten years following the last preceding revaluation of all real property and every ten years after such revaluation, view all of the real estate of their respective municipalities, and shall revalue the same for assessment and, in the performance of these duties, except in any municipality where there is a single assessor, at least two of the assessors shall act together, and all valuations shall be separately approved by a majority of the assessors.”
      Minor changes to $ 12-62 were made in 1979, 1989, and 1991. Most recently, the legislature enacted Public Acts 1992, No. 92-221 presumably to clarify that assessors are not required by § 12-62 to view and evaluate personally each parcel in the municipality. This act amends § 12-62 by adding, inter alia, subsection (g) which provides: “Any assessor required to view by physical observation all real estate in a municipality by the provisions of this section may designate a revaluation company certified in accordance with section 12-2b to view and evaluate, pursuant to a methodology approved by such assessor, all or any portion of such real estate, provided nothing in this subsection shall relieve any assessor of any other requirement relating to such revaluation imposed by any provisions of the general statutes, any public or special act or any municipal charter.”
      This act retroactively validated assessment lists for all towns except for any assessment list on which “a judgment of any court of this state or the United States has been rendered.” Public Acts 1992, No. 92-221, § 2. Consequently, subsection (g) does not apply to the present appeal.

       The defendants do not claim on appeal that the equitable doctrine of laches barred the plaintiffs’ declaratory judgment action, and thus we do not address the trial court’s denial of the defendants’ laches defense.

       General Statutes § 52-29 (a) provides: “The superior court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed. The declaration shall have the force of a final judgment.”

       Practice Book § 390 provides: “conditions
      “The court will not render declaratory judgments upon the complaint of any person:
      “(a) unless he has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to his rights or other jural relations; or
      “(b) unless there is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; or
      “(c) where the court shall be of the opinion that the parties should be left to seek redress by some other form of procedure; or
      “(d) unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.”

       General Statutes § 12-111 provides in pertinent part: “appeals to board of tax review. . . . [A]ny person . . . claiming to be aggrieved by the doings of the assessors of such town may appeal therefrom to such board of tax review, which shall determine all such appeals and report in writing the final determination of such appeals to each such person within one week after such determination has been made. Such board may equalize and adjust the valuations and assessment lists of such town and may increase the items of taxable property in the list of any person, or the number, quantity or amount of any such item, or add to any such list any taxable property or interest therein omitted by the assessors which should be added thereto . . . .”

       General Statutes § 12-118 provides in pertinent part: “appeals from CONNECTICUT APPEALS BOARD FOR PROPERTY VALUATION. Any person . . . claiming to be aggrieved by the findings or determinations of the Connecticut appeals board for property valuation may, within two months from the time of such action, make application, in the nature of an appeal therefrom, to the superior court for the judicial district which includes the town or city in which the property constituting the subject of such appeal is situated, which shall be accompanied by a citation to such town or city to appear before said court. . . . The court shall have power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable, and, if the application appears to have been made without probable cause, may tax double or triple costs, as the case appears to demand; and, upon all such applications, costs may be taxed at the discretion of the court. If the assessment made by the board of tax review is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes, together with interest and costs, or, at the applicant’s option, shall be granted a tax credit for such overpayment, interest and costs. Upon motion, said court shall, in event of such overpayment, enter judgment in favor of such applicant and against such city or town for the whole amount of such overpayment, together with interest and costs. The amount to which the assessment is so reduced shall be the assessed value of such property on the grand lists for succeeding years until the tax assessor finds that the value of the applicant’s property has increased or decreased.”

       The class plaintiffs in this action did not appeal the assessor’s revaluations of their property to the town’s board of tax review. The named plaintiffs, however, did file a challenge to their assessments with the board of tax review, and it was in the course of that proceeding that they learned that the assessor had not personally viewed each and every parcel of real estate in the town. Their subsequent appeal from the board’s decision is still pending in the Superior Court.

       General Statutes § 12-119 specifically states that the right to bring an action under that provision does not displace “other remedies provided by law.” In holding that the limitations provision of § 12-119 applies to the declaratory judgment action filed in the present case, we do not suggest that a declaratory judgment action is an improper method to challenge a town’s grand list. See Chamber of Commerce v. Waterbury, 184 Conn. 333, 439 A.2d 1047 (1981) (granting the plaintiffs’ request for a declaratory judgment that the assessment values were excessive). Our decision today merely requires that a declaratory judgment action that is predicated on the substantive rights of § 12-119 be brought within one year of the date of assessment.


source: Caselaw Access Project

author: Berdon, J.

license: Public Domain

text:
    Peter V. Scalzo et al. v. City of Danbury et al.
    (14485)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.
    Argued September 23
    decision released December 8, 1992

      Donald A. Mitchell, for the appellant (named plaintiff).

      Bruce J. Goldstein, with whom was Pamela D. Siemon, for the appellee (defendant).
   Berdon, J.

The sole issue on appeal is whether the trial court properly rendered a summary judgment in favor of the defendants because the doctrine of res judicata barred the plaintiffs’ action for damages for the alleged taking of the named plaintiff’s property. We affirm the judgment of the trial court, but on different grounds. The trial court’s decision was predicated upon the claim preclusion aspect of res judicata; we rule on the basis of issue preclusion. We hold that the taking issue was fully and fairly litigated, so as to preclude the plaintiff from relitigating the issue of whether the application of the Danbury zoning regulations resulted in a taking of his land.

The undisputed facts may be summarized as follows. The plaintiff, Peter V. Scalzo, owns approximately nineteen acres of land in an industrial zone and approximately six adjacent acres of land in a residential zone in the city of Danbury. The Danbury zoning regulations prohibit the use of residential property for access to industrial property. On or about May 15, 1987, the plaintiff applied to the Danbury zoning board of appeals for a variance to allow Mm access to the industrial land through the residential land. The board denied the variance application and the plaintiff appealed the denial to the Superior Court (variance appeal). On August 19, 1987, the plaintiff applied to the Danbury zoning commission for an amendment to the zoning regulations that would have permitted access to industrial land through residential land. The amendment application was denied and the plaintiff appealed the denial to the Superior Court (amendment appeal).

In both appeals, the plaintiff argued that the zoning authorities acted illegally, arbitrarily, and in abuse of their discretion because the denials constituted an unreasonable taking of the plaintiffs property. The plaintiff alleged that by denying his variance and amendment applications, the zoning board of appeals and the zoning commission prohibited access to his property and denied him all reasonable beneficial economic use of the property. The trial court, Stodolink, J., dismissed both appeals and noted in separate decisions that the “plaintiff has not demonstrated that there is no reasonable and proper use for his land. [He] may still be able to rezone his land to a single-family, half-acre zone . . . and make a profit on the land.” The court found that neither the demal of the variance application nor the denial of the amendment application resulted in an unconstitutional taking. The plaintiff appealed both the variance and the amendment decisions to the Appellate Court, but the appeals were dismissed as untimely.

While the variance and amendment appeals were pending before the Superior Court, the plaintiff commenced the present action against the defendants seeking damages for the alleged taking of his property under article first, § 11, of the Connecticut constitution. After the variance and amendment appeals were dismissed, the defendants filed a special defense alleging that “[tjhe rights and liability of the parties . . . were expressly put in issue and determined and adjudicated by the judgments in two prior actions . . . .” The trial court, Pickett, J., granted the motion for summary judgment in favor of the named defendant et al. because “the plaintiffs claim of an unconstitutional taking of property was fully and fairly litigated in the previous administrative appeals.” Therefore, the court concluded, claim preclusion prevented the plaintiff from bringing a cause of action for an unconstitutional taking. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

Claim preclusion, sometimes referred to as res judicata, and issue preclusion, sometimes referred to as collateral estoppel, are first cousins. Both legal doctrines promote judicial economy by preventing relitigation of issues or claims previously resolved. State v. Ellis, 197 Conn. 436, 466, 497 A.2d 974 (1985). “The concepts of issue preclusion and claim preclusion are simply related ideas on a continuum, differentiated, perhaps by their breadth, and express no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest.” (Internal quotation marks omitted.) Id., 464-65.

The subtle difference between claim preclusion and issue preclusion has been so described: “ ‘[Cjlaim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits. . . . [I]ssue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit.’ ” Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988), quoting Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392, 401-402, 546 A.2d 284 (1988), aff’d, 211 Conn. 67, 557 A.2d 540 (1989). Under claim preclusion analysis, a claim—that is, a cause of action— “ ‘includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. . . . ’ ” Duhaime v. American Reserve Life Ins. Co., 200 Conn. 360, 364-65, 511 A.2d 333 (1986), quoting 1 Restatement (Second), Judgments § 24 (1) (1982). Moreover, claim preclusion prevents the pursuit of “any claims relating to the cause of action which were actually made or might have been made.” Corey v. Avco-Lycoming Division, 163 Conn. 309, 317, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973).

In contrast, “ ‘issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and.necessarily determined in a prior action . . . .’ ” Carothers v. Capozziello, 215 Conn. 82, 94-95, 574 A.2d 1268 (1990), quoting In re Juvenile Appeal (83-DE), 190 Conn. 310, 316, 460 A.2d 1277 (1983). Because we find that the elements of issue preclusion were met in the present case, we decline to reach the merits of the defendant’s claim preclusion argument.

Issue preclusion applies if “an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment . . . .”1 Restatement (Second), Judgments § 27 (1982). An issue is “actually litigated” if it is properly raised in the pleadings, submitted for determination, and in fact determined. Id., § 27, comment d. If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually “have the characteristics of dicta.” Id., § 27, comment h.

The plaintiff conceded during oral argument that the taking issue had been litigated and determined by a valid and final judgment. The plaintiff argues, instead, that the ruling on the taking issue was not essential to the judgment made by the court. According to the plaintiff, once the court found a basis for upholding the action of the board, it needed to inquire no further. As a result, the plaintiff insists, the ruling on the taking issue was not essential to the judgment, and the elements of issue preclusion are not satisfied.

In order to determine whether the taking decision was essential to the judgment in this case, we must first examine the proper role of the trial court and evaluate its actions in this case. A trial court, in reviewing the action of a zoning authority, must determine whether the authority acted illegally, arbitrarily or in abuse of its discretion. Frito-Lay, Inc. v. Planning & Zoning Commission, 206 Conn. 554, 573, 538 A.2d 1039 (1988). Generally, a zoning authority’s decision “should be sustained if even one of the stated reasons is sufficient to support it.” Id., 576.

In this case, the zoning commission had denied the plaintiffs petition to amend the regulations for two reasons: “(1) because of the potential negative impacts on residential neighborhoods; and (2) because someone with a hardship has an opportunity to appeal to the Zoning Board of Appeals.” The trial court concluded that “the Commission did not act arbitrarily, illegally or in abuse of its discretion in denying [the] plaintiffs petition because the potential negative impacts on residential neighborhoods are reasonably supported by the record.” As to the second stated reason for the commission’s action, the trial court concluded that “[e]ven if the Commission may not base its denial on the existence of [the] plaintiff’s right to appeal the [zoning board of appeal’s] decision, the court should nevertheless dismiss the appeal because the denial is supported by the Commission’s other stated reason, i.e., the negative impact on the neighborhood.” The plaintiff further argued that the commission acted illegally, arbitrarily and in abuse of its discretion because: (1) the denial constituted an unreasonable taking of the plaintiff’s property; and (2) the denial controverted the concept of a comprehensive plan in violation of General Statutes § 8-2. The trial court rejected these arguments.

Similarly, the zoning board of appeals had denied the plaintiff’s application for a variance, stating that “(1) [i]t will impair the health, safety, and welfare of the neighborhood; and (2) [t]here is no hardship for the use of the property.” The trial court found evidence to support the board’s first stated reason for denying the variance. As to the second reason, the trial court found that the board had acted illegally, arbitrarily and in abuse of its discretion in finding that there was no hardship for the use of the property. Nevertheless, the trial court sustained the board’s action because the first stated reason for denying the variance was supported by the record. Again, the court addressed the plaintiffs additional argument that application of the zoning regulations had resulted in a taking of his land, and again the court ruled that no taking had occurred.

The decisive question in this appeal, then, is whether the trial court was required to reach the taking issue in the variance and amendment appeals after it found evidence to support at least one stated reason for the zoning authorities’ actions. If it was not necessary for the trial court to reach the taking issue, then the taking ruling was not essential to the judgment and is not barred by issue preclusion. We conclude that the ruling on the taking issue was both necessary and essential to the judgment because a finding that a taking had occurred would have required the trial court to sustain the appeals.

In Bartlett v. Zoning Commission, 161 Conn. 24, 282 A.2d 907 (1971), the plaintiff argued that the zoning commission’s amendment of its regulations to protect tidal wetlands resulted in a taking of his land. Although the defendant’s efforts to preserve wetlands were found to be laudable, this court upheld the trial court’s decision to sustain the appeal because the application of the regulations was so unreasonable and confiscatory that it amounted to an unconstitutional taking. Id., 30-31. Likewise, in Dooley v. Town Plan & Zoning Commission, 151 Conn. 304, 197 A.2d 770 (1964), the zoning commission amended its regulations to change a residential zone into a flood plain district. The plaintiff appealed to the Superior Court, claiming that the application of the amended regulations resulted in a taking of his land. The trial court dismissed the appeal. This court reversed and ordered that the appeal be sustained, holding that the regulations, as applied to the plaintiffs property, were unreasonable and confiscatory, and thus unconstitutional. Id., 314.

In Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 365 A.2d 387 (1976), the trial court directed the zoning board to grant the plaintiffs variance because the board’s reasons for denying the variance were not supported by the record. This court affirmed the trial court’s decision, noting that “[generally, when the court finds the action of an administrative agency to be illegal, it should go no further than to sustain the appeal. . . . Since the trial court found that the application of the setback regulation to the subject property would be tantamount to confiscation, it necessarily follows that the only reasonable action for the board to have taken would have been to grant the variance. Under those circumstances, the court properly directed that the variance be granted.” (Citations omitted; internal quotation marks omitted.) Id., 153.

Applying the logic of these cases, the trial court’s decision on the taking issue was essential to its judgment. If the court had found that an unconstitutional taking had occurred, the court would have been required to sustain the appeals, whether or not the zoning authorities’ actions were supported by evidence that increased traffic flow would impair the health, safety and welfare of the community. We conclude that the elements of issue preclusion have been met.

The judgment is affirmed.

In this opinion the other justices concurred.

       Davro Corporation is also a plaintiff but did not appeal from the trial court’s judgment. References to the plaintiff are to Peter B. Scalzo.

       The plaintiff’s brief focuses on claim preclusion because the trial court ruled on that basis. The defendants, however, raised the specter of issue preclusion, putting the plaintiff on notice of its importance in this appeal. Although an appellee should comply with Practice Book § 4013 (a) (1) when seeking judgment on alternative grounds, “this court is authorized to rely upon alternative grounds supported by the record to sustain a judgment.” Henderson v. Department of Motor Vehicles, 202 Conn. 453, 461, 521 A.2d 1040 (1987); C. Tait, Connecticut Appellate Practice and Procedure (1989) § 7.14. Because the elements of collateral estoppel, or issue preclusion, are met in this case, we need not reach the plaintiffs res judicata, or claim preclusion, arguments.

       The action was instituted against the city of Danbury, the zoning commission of the city of Danbury and its individual members, and the Dan-bury zoning board of appeals and its individual members. The plaintiff subsequently withdrew the action against the individual members of both zoning authorities.

       Article first, § 11, of the Connecticut constitution provides: “The property of no person shall be taken for public use, without just compensation therefor.”

       There is a strong basis for the rationale behind the rule that an issue must be essential to the judgment before it can be barred by collateral estoppel. In Halpern v. Schwartz, 426 F.2d 102, 105 (2d Cir. 1970), the court gave two reasons why an issue must be essential to the judgment before collateral estoppel applies: “First, the decision on an issue not essential to the prior judgment may not have been afforded the careful deliberation and analysis normally applied to essential issues, since a different disposition of the inessential issue would not affect the judgment. . . . Second, the decision on an inessential issue in the prior judgment was not subject to the important safeguard as to its correctness, to wit: a contested review on appeal.” (Citation omitted.) See also 1 Restatement (Second), Judgments S 27 (1982).

       The plaintiff argues that following the United States Supreme Court’s decision in First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107 S. Ct. 2378, 96 L. Ed. 2d 250 (1987), the taking issue was immaterial to the judgment because even if the court found a taking, that finding would not be enough to find that the board and the commission had acted illegally. The only issue before the court in First English was whether one could recover damages for the temporary taking of one’s land; therefore, the holding in First English is inapposite to the merits of the present case.

       If the plaintiff in this case had not raised the taking issue in his administrative appeal, the principle of claim preclusion would have prevented him from claiming an unconstitutional taking in a subsequent civil action for damages. See Duhaime v. American Reserve Life Ins. Co., 200 Conn. 360, 364, 511 A.2d 333 (1986). The administrative appeal would have afforded the plaintiff a constitutionally appropriate remedy, if a taking had been established, because the trial court could have sustained the appeal or the defendant zoning board of appeals could have been ordered to grant the plaintiffs application for a variance. There is no constitutional right to damages per se.


author: Peters, C. J. Berdon, J.,

text:
    Donna McGlinchey v. Aetna Casualty and Surety Company
    (14512)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.

      (One justice dissenting)

    Argued September 23
    decision released December 8, 1992

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

      Eugene A. Cooney, with whom, on the brief, was Rodd J. Mantell, for the appellee (defendant).

      JoramHirsch and William F. Gallagher filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.
   Peters, C. J.

The principal issue in this appeal is the enforceability of a provision in a contract for uninsured or underinsured motorist coverage that requires the insured to initiate collection proceedings within a two year period from the occurrence of an automobile accident. The plaintiff, Donna McGlinchey (insured), filed a demand for arbitration of an underinsured motorist claim pursuant to her insurance contract with the defendant, Aetna Casualty and Surety Company (insurer). The arbitrators decided in favor of her claim, but the trial court, in response to a motion to vacate the arbitration award, set the award aside on the ground that the insured’s claim was time-barred. The insured appealed to the Appellate Court from the judgment of the trial court vacating the arbitration award. We transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c), and now affirm.

The following facts were stipulated by the parties and found by the trial court. On January 24, 1987, the insured, while driving her own vehicle, was injured in a two car accident caused by the negligence of another driver (tortfeasor). At the time of the accident, the insured’s uninsured motorists coverage contract with the insurer provided that “the covered person may make a written demand for arbitration within 2 years of the date of [the] accident.”

The insured brought a lawsuit against the tortfeasor on October 12, 1988. Through discovery, the insured learned on March 1, 1989, that the tortfeasor’s limit of liability insurance was $20,000. On March 9, 1989, the insured demanded, pursuant to the uninsured motorists provisions of her insurance contract, that the insurer submit to arbitration her claim to collect benefits for damages in excess of the tortfeasor’s liability limits.

A panel of three arbitrators found that the insured had suffered $220,000 in damages, and concluded that she was entitled to recover $200,000 from the insurer after a setoff to account for the $20,000 paid by the tortfeasor. The arbitrators construed the provision in the insurance contract that “the covered person may make a written demand for arbitration within 2 years of the date of the accident” as permissive rather than mandatory. According to the arbitrators’ construction, the permissive arbitration provision created a contract that was ambiguous about the status of arbitration demands filed after the expiration of the two year period, and that ambiguity, therefore, had to be resolved in favor of the insured.

In the trial court, the insurer filed an application to vacate the award on the ground that the arbitrators had not enforced the two year time limitation contained in the policy, and the insured filed an application to confirm the award. Because this case involves compulsory arbitration of uninsured motorists coverage, the trial court correctly undertook a de novo review of the arbitrators’ conclusions of law. See Lumbermens Mutual Casualty Co. v. Huntley, 223 Conn. 22, 26, 610 A.2d 1292 (1992); American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 191, 530 A.2d 171 (1987). The trial court agreed with the insurer’s contention that the two year time limitation unambiguously barred the claim of the insured. The trial court, accordingly, granted the insurer’s application to vacate, and denied the insured’s application to confirm.

The insured appeals from the judgment in favor of the insurer on three grounds. She claims that: (1) the time limitation in the insurance policy is ambiguous and therefore does not require that a demand for arbitration of the underinsurance claim be made before the expiration of the two year limit set in the policy; (2) even if the time limitation is unambiguous, her demand for arbitration was timely because the limitation period did not begin to run until the tortfeasor’s coverage had been exhausted; and (3) a two year limitation, measured from the date of the covered accident, is unenforceable because it is void as against public policy. We are unpersuaded.

I

The insured’s first contention is that language in the insurance contract governing arbitration of uninsured motorists coverage is ambiguous and that this ambiguity must be resolved in favor of coverage. Analysis of a claim of ambiguity must proceed from well established rules for contract construction governing the interpretation of insurance contracts. See, e.g., Kelly v. Figueiredo, 223 Conn. 31, 35, 610 A.2d 1296 (1992); Aetna Life & Casualty Co. v. Bulaong, 218 Conn. 51, 58, 588 A.2d 138 (1991). Coverage provisions in an insurance contract are normally to be construed in accordance with the natural and ordinary meaning of the language found therein. Kelly v. Figueiredo, supra; Beach v. Middlesex Mutual Assurance Co., 205 Conn. 246, 249, 532 A.2d 1297 (1987). There is no presumption that language in insurance contracts is inherently ambiguous. Only if the language manifests some ambiguity do we apply the rule that ambiguous insurance contracts are to be construed in favor of insureds and to provide coverage. Kelly v. Figueiredo, supra, 37; Beach v. Middlesex Mutual Assurance Co., supra, 250.

The clause that the insured asks us to find ambiguous states that “the covered person may make a written demand for arbitration within 2 years of the date of [the] accident.” The linchpin of the insured’s argument for ambiguity is the use of the word “may.” Because the clause instructs an insured that the insured “may” make a written demand within two years of an accident, without spelling out the consequences of a late demand, the insured maintains that the clause fails unambiguously to provide that coverage will be forfeited upon expiration of the two year time limitation.

The argument advanced by the insured is unpersuasive for a number of reasons. In context, the use of the word “may” is not ambiguous because it merely memorializes the fact that arbitration is an option that an insured is free to elect or to reject. This construction of “may” is consistent with its dictionary definition of granting permission, freedom or ability. See, e.g., Webster’s Ninth New Collegiate Dictionary; Black’s Law Dictionary (6th Ed.); and see Morris v. Timenterial, Inc., 168 Conn. 41, 43, 357 A.2d 507 (1975); Lee v. Lee, 145 Conn. 355, 359-60, 143 A.2d 154 (1958). The insured has an option to demand arbitration only upon compliance with the explicit and unambiguous constraints of the terms of the option, including the obligation to initiate the arbitration demand within the stated time period. It is fanciful to suggest that the consequence of failure to observe the time constraint is anything other than a lapse of the right conferred by the option. Finally, it is the fact that arbitration is an option for the insured that, without creating ambiguity, obviates any need for an explicit clause denying the right to demand arbitration after two years from the date of the accident. We concur, therefore, in the ruling of the trial court that, as a matter of law, there is no ambiguity in the clause limiting the insured’s recourse to arbitration to a two year period after the occurrence of a covered accident.

II

The insured next maintains that, even if the arbitration clause unambiguously establishes the period during which the insured may demand arbitration, the limitation period in her case must be deemed to have been tolled until she had a reasonable opportunity to liquidate her claim against the tortfeasor. This contention rests on Continental Ins. Co. v. Cebe-Habersky, 214 Conn. 209, 212-13, 571 A.2d 104 (1990), wherein we held that General Statutes (Rev. to 1989) § 38-175c (b) (1), now recodified as § 38a-336, imposes upon an underinsured motorist claimant, before recovering underinsured motorist compensation, the responsibility to exhaust payments for which the tortfeasor is liable.

In this case, the accident occurred on January 24, 1987, the action was commenced against the tortfeasor on October 12, 1988, discovery disclosed the tortfeasor’s limited insurance coverage on March 1,1989, and the tortfeasor’s liability was exhausted by payment of $20,000 on August 4, 1989. The insured therefore maintains that she had two years after August 4,1989, to pursue a demand to arbitrate her underinsured motorist claim against the insurer. We disagree.

Contracting parties are free to adopt an unambiguous contract provision requiring a demand for arbitration to be made “within 2 years of the date of [the] accident.” See Monteiro v. American Home Assurance Co., 177 Conn. 281, 286-87, 416 A.2d 1189 (1979). Continental Ins. Co. v. Cebe-Habersky, supra, does not hold to the contrary. The sole issue decided in that case was that, under the applicable statute, an insured had forfeited his underinsured motorist coverage by settling his claim against the tortfeasor in an amount less than the limit of the tortfeasor’s liability coverage. The court had no occasion to consider what other limitations the contracting parties might properly impose on access to underinsured motorist coverage. It is worth noting, however, that Continental Ins. Co. v. Cebe-Habersky, supra, refused to countenance a good faith deviation from the statutory conditions imposed upon recovery of underinsured motorist insurance. We see no reason why contractual conditions on underinsured motorist insurance are not equally enforceable.

Ill

The insured maintains finally that an insurance contract’s two year limitation on uninsured motorists arbitration actions, if measured from the date of the accident and not the date of the discovery of the tortfeasor’s uninsured status, is void as contrary to public policy. The insured contends that the two year limitation violates the policy of our uninsured motorists statutes that victims of automobile accidents are entitled to full financial redress for their injuries. See, e.g., American Universal Ins. Co. v. DelGreco, supra, 197; Harvey v. Travelers Indemnity Co., 188 Conn. 245, 249, 449 A.2d 157 (1982).

The insured cannot prevail on this contention in light of the fact that the legislature, which is the source of public policy, has declared, in General Statutes (Rev. to 1987) § 38-27, now recodified as § 38a-290, that “[n]o insurance company doing business in this state shall limit the time within which . . . any claim shall be submitted to arbitration . . . [with respect to] the uninsured motorist provisions of a motor vehicle insurance policy to a period less than two years from the date of the accident. . . .” (Emphasis added.) The history of this enactment demonstrates that the legislature recognized that insurance carriers were free to contract for a period of limitation of no less than two years. We conclude, therefore, that the limitation clause at issue here, which parallels the statute authorizing the two year limit, does not violate public policy.

The judgment is affirmed.

In this opinion Callahan, Borden and Norcott, Js., concurred.

Berdon, J.,

dissenting. I disagree with the majority’s conclusion that the two year contractual limitation for demanding arbitration for underinsured motorist coverage is enforceable.

In Continental Ins. Co. v. Cebe-Habersky, 214 Conn. 209, 571 A.2d 104 (1990), the majority of this court held that General Statutes (Rev. to 1989) § 38-175c (b) (1), now recodified as § 38a-336, prevents an insured from recovering underinsured motorist benefits until after the tortfeasor’s liability has been exhausted. Practically speaking, it may take years of litigation, at trial and on appeal, to exhaust a tortfeasor’s liability. As a result, it is often impossible to comply with this condition precedent to arbitration. The majority addresses these concerns in footnote 7 of its opinion, merely by noting that an insured may bring an action to recover underinsured motorist benefits while litigation against the tortfeasor is pending. The majority’s suggestion adds to the costs of litigation, further burdens our trial courts, and ignores the realities of litigation. Even if the insured’s attorney could demand arbitration ethically, the insured’s claim for arbitration for underinsured motorist coverage could be summarily disposed of simply because the insured failed to satisfy the condition precedent of exhausting the tortfeasor’s liability. This leads to absurd consequences.

The legislature set forth the public policy of this state when it enacted the statutory scheme to provide for underinsured motorist coverage. It intended that “every insured is entitled to recover for the damages he or she would have been able to recover if the [underinsured] motorist had maintained a policy of liability insurance” equal to the coverage limits of the insured’s policy. Harvey v. Travelers Indemnity Co., 188 Conn. 245, 249, 449 A.2d 157 (1982). The purpose of the legislation was “to provide broad coverage to victims of uninsured [and underinsured] motorists, and . . . [i]t was not the intent of the legislature ... to offer protection with one hand and then take a part of it away with the other.” (Internal quotation marks omitted.) Id., 250-51, quoting State Farm Mutual Automobile Ins. Co. v. Hinkel, 488 P.2d 1151, 1153 (Nev. 1971). Because this court’s holding in Continental Ins. Co. v. Cebe-Haber sky, supra, requires an insured to exhaust a tortfeasor’s policy, a two year contractual limitation for a demand for underinsured motorist arbitration violates the purpose of the legislation and offends public policy.

The two year contractual limitation in the defendant’s policy cannot stand for another reason. Although the failure to comply with a limitation period in an insurance contract is a defense to an action on the policy, such a contractual provision will not be enforced if there “is a valid excuse for nonperformance.” Monteiro v. American Home Assurance Co., 177 Conn. 281, 283, 416 A.2d 1189 (1979). In the present case, the condition precedent imposed by the majority of this court in Continental Ins. Co. v. Cebe-Habersky, supra, constitutes a valid excuse. Furthermore, the law suspends performance of contractual obligations when performance becomes impractical or its purpose is frustrated. 2 Restatement (Second), Contracts § 269 (1982). It is simply impractical to require an insured to demand arbitration of an underinsured motorist claim before it can be determined whether the tortfeasor’s liability has been exhausted.

The majority’s ruling today allows the insurer to have it both ways. The insured must exhaust every last dollar of the tortfeasor’s insurance in order to be eligible for underinsured coverage, and yet, the insured must initiate arbitration proceedings within a time period that is often insufficient to allow exhaustion of the tortfeasor’s liability.

For the foregoing reasons, I would find that the two year contractual limitation should not be enforced as to underinsured motorist coverage.1 would, therefore, reverse the trial court’s judgment and remand this matter with instructions to deny the defendant’s application to vacate and render judgment on the plaintiff’s application to confirm the award to the plaintiff in the sum of $180,000.

Accordingly, I dissent.

       Pursuant to the terms of the insurance contract, the uninsured motorists provisions also apply to underinsured vehicles. See also General Statutes (Rev. to 1987) § 38-175c (recodified as § 38a-336). Because the contract identifies these provisions generally as “uninsured motorists” provisions, we adopt this language throughout our discussion of the insured’s claim. Our resolution of the claim, however, applies equally to both uninsured and underinsured motorists coverage disputes involving the same issue here.

       The relevant portion of the policy provides: “Part C. Uninsured Motorists Coverage ... 5. ... If we and a covered person do not agree:
      “1. Whether that person is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle; or
      “2. On the amount of damages; the covered person may make a written demand for arbitration within 2 years of the date of accident as follows:
      “A. If the amount in demand is $40,000.00 or less, such arbitration proceeding shall be conducted by a single arbitrator. . . .
      “B. If the amount in demand is more than $40,000.00, the covered person and the Company will each select an arbitrator. The two arbitrators will select a third. . . . The decision made by the arbitrators) will be binding. However, either party may make a written demand for trial .... If this demand [for trial] is not made within 60 days of the decision of the arbitrator(s), the amount of damages awarded by the arbitrator(s) will be binding.”

       The insured exhausted the limits of the tortfeasor’s liability coverage on August 4,1989, when the tortfeasor paid the insured the full $20,000 available under the policy.

       The arbitration clause has a different function from Part F of the insurance policy, which provides, in relevant part, that “[n]o legal action may be brought against us until there has been full compliance with all the terms of this policy. . . . In addition, under Part C [‘Uninsured Motorists Coverage’], no legal action may be brought after two years from the date of the accident.”

       We note that this claim, as articulated by the insured, focuses on the time when the insured discovered that the tortfeasor was underinsured. In the insured’s earlier argument for tolling the limitation period, she would amend the contractual time limitation to begin at the time that an insured received payment from the underinsured tortfeasor. For present purposes, we can discern no difference in these alternate formulations of the insured’s claims.

       The arbitration provision was added to General Statutes § 38-27 by Public Acts 1985, No. 85-73. In the comments to the act, Senator Donald E. Schoolcraft remarked that, prior to the amendment, an “insurance company could say [that] arbitration has to be filed within one week, ten days, six months or a year. What we’re saying, and all we’re asking in this Bill . . . is . . . that the insurance company cannot set any time limit less than two years.” 28 S. Proc., Pt. 4, 1985 Sess., p. 1279.

       Enforcement of the two year time limitation does not impose an insuperable burden on an insured, because a demand for arbitration can be timely filed even while claims against the tortfeasor are being pursued in another forum. Continental Ins. Co. v. Cebe-Habersky, 214 Conn. 209, 571 A.2d 104 (1990), did not hold that a claim against a tortfeasor and an arbitration action against an insurer cannot be initiated simultaneously. Furthermore, the insured in this case has not advanced a elaim that, in the exercise of reasonable diligence, she would have been unable earlier to initiate her demand against the insurer and to discover the extent to which she could recover from the tortfeasor.

       Indeed, Justice Shea in his dissent in Continental Ins. Co. v. CebeHabersky, 214 Conn. 209, 214, 571 A.2d 104 (1990), cogently pointed out the following: “The effect of the majority’s holding is to require a victim who has uninsured motorist coverage exceeding the limit of the tortfeasor’s liability insurance to obtain the last dollar of that insurance under the penalty of losing the entire benefit of his uninsured motorist coverage. By requiring the victim to obtain the full amount of the tortfeasor’s liability coverage before proceeding against the uninsured motorist carrier, the majority has erected a barrier to the settlement of liability claims that is likely to have a serious impact upon our overburdened jury trial docket.”

       Rule 3.1 of the Connecticut Rules of Professional Conduct provides in pertinent part: “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.”

       The majority’s claim that the plaintiff’s public policy argument fails because General Statutes (Rev. to 1987) § 38-27, now recodified as § 38a-290, allows the insurer to include a two year limitation in its policy is not persuasive. Of course, the legislature is the final arbiter of our public policy. Laurel Bank & Trust Co. v. Mark Ford, Inc., 182 Conn. 437, 442, 438 A.2d 705 (1980). Although statutes and regulations that are applicable to uninsured motorist coverage usually apply to underinsured motorist coverage as well, § 38a-290 must be limited to its precise language in this case—that is, it must be limited to apply only to “uninsured” motorist provisions and not “underinsured” motorist provisions. This limited construction makes sense because one who brings a claim for uninsured motorist coverage knows almost immediately whether the tortfeasor has insurance. In contrast, a claim for underinsured motorist coverage involves the more complicated tasks of determining how much coverage is available followed by measures to exhaust such coverage. “Where the terms of the policy are of doubtful meaning, the construction most favorable to the insured will be adopted.” (Internal quotation marks omitted.) Beach v. Middlesex Mutual Assurance Co., 205 Conn. 246, 250, 532 A.2d 1297 (1987), quoting LaBonte v. Federal Mutual Ins. Co., 159 Conn. 252, 256, 268 A.2d 663 (1970). “In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result. . . . Statutes must be construed, if possible, that absurdity and mischief may be avoided.” (Citations omitted; internal quotation marks omitted.) Ford Motor Credit Co. v. B. W. Beardsley, Inc., 208 Conn. 13, 20, 542 A.2d 1159 (1988).

       As noted in footnote 3, uninsured motorist coverage involves different considerations.


text:
    Henry S. Hotkowski v. Aetna Life and Casualty Company
    (14498)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.

      (One justice dissenting)

    Argued September 23
    decision released December 8, 1992

      Frederick J. Miaño, for the appellant (plaintiff).

      Eugene A. Cooney, with whom, on the brief, was Rodd J. Mantell, for the appellee (defendant).
   Peters, C. J.

As in the companion case of McGlinchey v. Aetna Casualty & Surety Co., 224 Conn. 133, 617 A.2d 445 (1992), which we have also released today, the principal issue in this appeal is the enforceability of a provision in a contract for uninsured or underinsured motorists coverage that requires the insured to initiate collection proceedings within a two year period from the occurrence of an automobile accident. The plaintiff, Henry Hotkowski (insured), filed an action alleging that he had a right to recover underinsured motorist benefits pursuant to an insurance contract issued by the defendant, Aetna Life and Casualty Company (insurer). In response, the insurer filed a motion for summary judgment on the ground that the insured’s claim was time-barred. After the trial court granted the insurer’s motion, the insured appealed to the Appellate Court. We transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c), and now affirm.

The following facts are not disputed. On December 23, 1987, the insured, while driving his own vehicle, was injured in a two car accident caused by the negligence of another driver (tortfeasor). In the pursuit of his claim against the tortfeasor, the insured discovered, by a letter dated January 10, 1990, that the tortfeasor’s limit of liability insurance was $20,000.

On September 4, 1990, the insured instituted this action against the insurer seeking benefits for damages in excess of the tortfeasor’s liability limits pursuant to the uninsured motorists provisions of his contract. At the time of the accident, the insurance contract provided that “[a] 11 claims or suits under Part C. [‘Uninsured Motorists Coverage’] must be brought within two years of the date of accident.”

The insurer filed a motion for summary judgment, relying on memoranda of law and an affidavit submitted by the insurer. No counter affidavits were filed by the insured. Treating the issues before it as raising solely a question of law, the trial court granted the insurer’s motion for summary judgment. The court determined that the insured’s suit was time-barred. The court ruled that, whether the insured characterized his demand as a “claim” or a “suit,” he had filed his suit too late to comply with the two year time limitation contained in the contract. Furthermore, the court upheld the validity of the time limitation, concluding that it was authorized by General Statutes (Rev. to 1987) § 38-27.

The insured appeals from the judgment in favor of the insurer on three grounds. He maintains that the time limitation clause in the insurance contract does not bar his suit because: (1) a “claim” may be pursued, even after expiration of a contractual time limitation, in the absence of a showing of prejudice to the insurer; (2) the two year period does not commence to run until an insured has had a fair opportunity to discover the underinsured status of the tortfeasor; and (3) the two year period is not authorized by § 38-27, because that statute applies only to uninsured and not to underinsured motorists coverage. We are unpersuaded.

I

The insured first maintains that his demand for uninsured motorists coverage complied with the conditions of the contract provision that a claim or suit be made “within two years of the date of [the] accident.” Specifically, he argues that the term “claim” means, in effect, “notice of claim,” and that a late demand for coverage made pursuant to the “notice” provision of an insurance contract does not bar the claim absent a factual showing of prejudice to the insurer. Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 418, 538 A.2d 219 (1988). The insured concludes that, because the facts before the trial court did not establish such prejudice, the court should not have granted summary judgment.

Even if we were to agree that the contract term “claim” is a synonym for “notice of claim,” we could not sustain the argument of the insured. Although we held, in Aetna Casualty & Surety Co. v. Murphy, supra, that the failure of an insured to meet a contractual time limitation with respect to a “notice of claim” may be excused if the insurer suffered no material prejudice from the delay, we also held that prejudice to the insurer will be presumed. Id., 419-20. We expressly imposed upon the insured the burden of establishing a lack of prejudice to the insurer. Id. In accordance with this allocation of the burden of proof, in Aetna Casualty & Surety Co. v. Murphy, supra, we affirmed the decision of the trial court granting the insurer’s motion for summary judgment because the affidavit submitted by the insured “contained no factual basis for a claim that [the insurer] had not been materially prejudiced by [the insured’s] delay.” Id., 420-21. In the present case, the insured filed no affidavit in opposition to the insurer’s motion for summary judgment. Because the insured has, therefore, failed to sustain his burden of making the requisite factual showing regarding absence of prejudice to the insurer, this contention is not a viable response to the motion for summary judgment.

II

The insured next maintains that, even if the period during which he could bring a claim was limited to two years, summary judgment was improper because the limitation period in his case must be deemed to have been tolled. The insured contends that General Statutes (Rev. to 1989) § 38-175c, now recodified as § 38a-336, as interpreted in Continental Ins. Co. v. Cebe-Habersky, 214 Conn. 209, 212-13, 571 A.2d 104 (1990), required him to exhaust his claim against the tortfeasor in advance of his pursuit of a claim against the underinsured motorists insurer. He argues, therefore, that he could not initiate his claim against the insurer until he discovered, more than two years after the accident, that the tortfeasor had only $20,000 liability coverage.

We have today examined and rejected a similar contention in McGlinchey v. Aetna Casualty & Surety Co., supra. Although that case involved a two year limitation in an arbitration clause, we conclude that its holding is equally applicable to a clause imposing a two year limitation on the time for initiating “claims or suits,” as is specified in the insurance contract at issue in this case. The insured, therefore, cannot prevail on this argument.

Ill

The insured’s final argument is that the trial court improperly granted the motion for summary judgment because the time limitation clause in the insurance contract is void as against public policy. The trial court rejected this contention because it held that § 38-27 authorizes an uninsured or underinsured motorist insurance contract to include a time limitation of not less than two years. We came to the same conclusion in McGlinchey v. Aetna Casualty & Surety Co., supra.

The insured maintains, however, that § 38-27 does not apply to his insurance contract because the statute permits a two year time limitation only for “uninsured motorist provisions of a motor vehicle insurance policy” without authorizing such a limitation for insurance coverage arising out of injuries sustained by the conduct of underinsured motorists. According to the insured, the legislature would have intended to make such a distinction because an accident victim would more quickly be able to discover that his tortfeasor was uninsured than that he was underinsured. The insurer counters by noting that its need promptly to ascertain the circumstances of the accident and the extent of the insured’s injury is equally urgent whether the tortfeasor is uninsured or underinsured.

We are persuaded that we should not address these arguments of public policy because the term “uninsured motorist” has come to include “underinsured motorist” by legislative fiat. When the legislature enacted Public Acts 1979, No. 79-235, it included underinsured vehicles within the coverage of the uninsured motorists statute, § 38-175c, now recodified as § 38a-336. As a result, the statute now expressly defines “uninsured motorist coverage” to include insurance “for the protection of persons . . . who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles . . . .’’In light of this statutory mandate, “statutory provisions relating expressly to uninsured motorist coverage apply also to underinsured motorists.” American Motorists Ins. Co. v. Gould, 213 Conn. 625, 628, 569 A.2d 1105 (1990), overruled in part on other grounds, Covenant Ins. Co. v. Coon, 220 Conn. 30, 37-38, 594 A.2d 977 (1991); Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 61, 523 A.2d 477 (1987); see also Nationwide Ins. Co. v. Gode, 187 Conn. 386, 390-91, 446 A.2d 1059 (1982), overruled in part on other grounds, Covenant Ins. Co. v. Coon, 220 Conn. 30, 36 n.6, 594 A.2d 977 (1991). This statutory mandate encompasses the two year time limitation validated by § 38-27. If the statute has implications of public policy that the legislature should reject, the insured must make his case to the legislature and not to the courts.

We conclude that the trial court correctly construed and applied the terms of the uninsured motorists coverage in the insurance contract issued by the insurer to the insured. Because of the two year time limitation in that contract, the court correctly granted the insurer’s motion for summary judgment.

The judgment is affirmed.

In this opinion Callahan, Borden and Norcott, Js., concurred.

Berdon, J.,

dissenting. I disagree. See McGlinchey v. Aetna Casualty & Surety Co., 224 Conn. 133, 617 A.2d 445 (1992) (Berdon, J., dissenting).

       The insured exhausted the limits of the tortfeasor’s liability coverage through acceptance of a tendered settlement offer of the full $20,000 available under the tortfeasor’s policy.

       Pursuant to the terms of the insurance contract, the uninsured motorists provisions also apply to underinsured vehicles. See also General Statutes (Rev. to 1987) § 38-175c, recodified as § 38a-336. Because the contract identifies these provisions generally as “uninsured motorists” provisions, we adopt this language throughout our discussion of the insured’s claim. Our resolution of the claim, however, applies equally to both uninsured and underinsured motorists coverage disputes involving the same issue here.

       The relevant portion of the policy provides: “Part P. General Provisions ... 2. . . Legal Action Against Us. No legal action may be brought against us until there has been full compliance with all the terms of this policy. In addition .... [a]ll claims or suits under Part C. must be brought within two years of the date of accident.”

       General Statutes (Rev. to 1987) § 38-27, now recodified as § 38a-290, provides in part: “No insurance company doing business in this state shall limit the time within which any suit shall be brought against it ... on . . . the uninsured motorist provisions of a motor vehicle insurance policy to a period less than two years from the date of the accident.”

       The trial court granted summary judgment on the ground that the term “claim” in the insurance contract did not mean “notice of claim.” The trial court concluded, therefore, that the demand made by the insured, whether characterized as a claim or suit, was time-barred.

       Enforcement of the two year time limitation does not impose an insuperable burden on an insured, because an action to recover pursuant to the uninsured motorists insurance policy can be timely filed even while claims against the tortfeasor are then being pursued in another forum. Continental Ins. Co. v. Cebe-Habersky, 214 Conn. 209, 571 A.2d 104 (1990), did not hold that two such lawsuits cannot be initiated simultaneously. Furthermore, the insured in this case has not advanced a claim that, in the exercise of reasonable diligence, he would have been unable earlier to file his action against the insurer and to discover the extent to which he could recover from the tortfeasor.

       This issue was not raised in McGlinchey v. Aetna Casualty & Surety Co., 224 Conn. 133, 617 A.2d 445 (1992).

        Simonette v. Great American Ins. Co., 165 Conn. 466, 472-73, 338 A.2d 453 (1973), is not to the contrary. Its holding that the uninsured motorists statute, as then drafted, did not mandate underinsured motorists coverage led the legislature to enact Public Acts 1979, No. 79-235 to remedy this omission. Nationwide Ins. Co. v. Gode, 187 Conn. 386, 390-91, 446 A.2d 1059 (1982), overruled in part on other grounds, Covenant Ins. Co. v. Coon, 220 Conn. 30, 36 n.6, 594 A.2d 977 (1991).