text:
    Theodore E. Griffin v. Claude L. Parker
    (14132)
    Peters, C. J., Callahan, Covello, Borden and F. X. Hennessy, Js.

      Argued May 2
    decision released June 25, 1991

      Louis S. Avitabile, with whom were Joshua R. Kricker and, on the brief, Denise Dishongh, for the appellant (defendant).

      Joseph Procopio, for the appellee (plaintiff).
   Callahan, J.

The plaintiff, Theodore Griffin, instituted this civil action to recover damages for massive injuries to his left arm suffered when he was struck by pellets from a shotgun blast fired by the defendant, Claude L. Parker, on September 22,1984. The incident in which the plaintiff was injured occurred on the property of the defendant at 110 Bishop Street, Waterbury.

As a result of the shooting, the defendant was arrested and charged in an information with assault in the first degree. He was subsequently tried by a jury in the Superior Court in the judicial district of Waterbury. On March 14, 1985, the jury found the defendant guilty of assault in the first degree in violation of both General Statutes § 53a-59 (a) (1) and (3), as charged in the second count of the information. After the verdict was returned, the jury was not polled to determine the particular subdivision of § 53a-59 of which the defendant had been found guilty. Consequently, the record indicates that the defendant was found guilty of assault in the first degree under both subdivisions. In order to have convicted the defendant of assault in the first degree in violation of § 53a-59 (a) (1), the jury was required to have found that the defendant intended to cause serious physical injury and to have caused such injury to the plaintiff by means of a deadly weapon or dangerous instrument. In order to have convicted the defendant of assault in the first degree in violation of § 53a-59 (a) (3), the jury would have to have found that the defendant, under circumstances evincing an extreme indifference to human life, recklessly engaged in conduct that created a risk of death to another person and thereby caused serious physical injury to the plaintiff.

After the defendant was found guilty in the criminal action, the plaintiff brought a civil action for damages to compensate him for the serious injuries to his left arm. In the first count of his complaint, the plaintiff alleged that his injuries were caused by the defendant’s negligent and careless discharge of the shotgun. In the second count, he alleged that his injuries were caused by the intentional or reckless discharge of the shotgun. In the third count, he alleged that his injuries were caused by the defendant’s recklessness and carelessness in discharging the shotgun in a manner likely to cause bodily injury or death in violation of General Statutes § 53-203. The civil action was not commenced until July 20, 1987, nearly two years and ten months after the plaintiff was shot.

In his answer, the defendant raised the special defense of the statute of limitations. Specifically, the defendant claimed that as to counts one and three of the complaint, which allege negligence, carelessness and recklessness, and as to that portion of count two which alleges recklessness, the plaintiff’s cause of action was barred because he had not initiated suit within two years as required by General Statutes § 52-584.® After the pleadings were closed in the civil action, the plaintiff moved for summary judgment on the second count of his complaint, which alleged that “[t]he plaintiffs injuries were caused by the defendant Claude L. Parker, who intentionally or recklessly discharged a shotgun in the direction of the plaintiff.”

In his motion for summary judgment, the plaintiff claimed that under the doctrine of collateral estoppel the defendant was precluded “from raising or litigating the issue of whether he intentionally caused serious physical injury to the plaintiff by means of a deadly weapon because the defendant Piad been] convicted by a jury of Assault in the First Degree based on the same facts involved in this case and that finding is dispositive of this issue.” (Emphasis added.) The trial court agreed with the plaintiff that the defendant was collaterally estopped from relitigating the issue of whether the defendant had intentionally caused the plaintiffs injury and granted the plaintiffs motion for summary judgment. In a later memorandum of decision, issued in response to the defendant’s motion to reargue, the court stated that, although the verdict of the jury in the defendant’s criminal case was “general” and convicted the defendant of both § 53a-59 (a) (1) and (3), it made no difference in the result because the second count of the plaintiff’s complaint alleged that the defendant’s actions were “ ‘reckless or intentional’ ” and the plaintiff need only prove that the defendant’s actions were “one or the other but not both.” The trial court then confirmed its previous action in granting the plaintiff’s motion for summary judgment on the second count of Ms complaint. Subsequently, the court held a hearing in damages and awarded the plaintiff the sum of $475,000 for his injuries. Thereafter, the parties stipulated to the withdrawal of counts one and three of the plaintiffs complaint.

The defendant appealed from the trial court’s judgment to the Appellate Court. Griffin v. Parker, 22 Conn. App. 610, 579 A.2d 532 (1990). The Appellate Court determined that the record demonstrated that the defendant had, in fact, been convicted by the jury in Ms criminal trial of violating both § 53a-59 (a) (1) and (3). Id., 613. The Appellate Court concluded, however, that by choosing not to appeal his criminal conviction the defendant had “effectively accepted the judgment of conviction that had been rendered on the basis of both reckless and intentional assault.” Id. The Appellate Court found irrelevant the fact that the plaintiff’s claim based on the defendant’s conviction for reckless conduct might be barred by § 52-584, because the defendant’s claim based on intentional conduct was not so barred. Id., 614. The Appellate Court then went on to decide that the defendant was estopped by the doctrine of collateral estoppel from relitigating in the civil action the “precise issue” determined by a higher standard of proof in the prior criminal action. Id., 623. In its conclusion, the Appellate Court stated that “ ‘[a] prior conviction estops a party in a later civil suit from contesting facts necessarily established in the criminal proceeding.’ ” Id., quoting Compton v. Ide, 732 F.2d 1429, 1434 (9th Cir. 1984).

We granted the defendant’s petition for certification to appeal three issues. Griffin v. Parker, 216 Conn. 825, 582 A.2d 204 (1990). We find it necessary and judicious to address only one of those issues, namely, “[wjhether the Appellate Court was correct in concluding that the issue of intentional assault was necessarily determined in the prior criminal action?” We conclude that it was not correct.

As previously noted, the jury’s verdict of guilty of assault in the first degree under § 53a-59 (a) (1) required that the jury have found that the defendant acted with the intent to cause serious physical injury to the plaintiff. On the other hand, its verdict of guilty under § 53a-59 (a) (3) necessitated a finding that the defendant recklessly engaged in conduct that caused serious physical injury to the plaintiff. The intent to cause serious physical injury required for a conviction of assault in the first degree under § 53a-59 (a) (1), by definition, required a jury finding that the defendant acted with the “conscious objective” to cause serious physical injury. General Statutes § 53a-3 (ll); see State v. King, 216 Conn. 585, 593, 583 A.2d 896 (1990); State v. Beccia, 199 Conn. 1, 4, 505 A.2d 683 (1986). In order to find the defendant guilty of assault in the first degree under § 53a-59 (a) (3), however, the jury was required to find that the defendant acted recklessly, that is, without a conscious objective. State v. King, supra; State v. Beccia, supra. To return a verdict of guilty of assault in the first degree under both § 53a-59 (a) (1) and (3), therefore, the jury in the defendant’s criminal case would have to have found that the defendant simultaneously acted intentionally and recklessly with regard to the same act and the same result, namely, the firing of the shotgun and the consequent serious physical injury to the plaintiff.

“As is evident, however, the statutory definitions of ‘intentionally’ and ‘recklessly’ are mutually exclusive and inconsistent. ‘Reckless conduct is not intentional conduct because one who acts recklessly does not have a conscious objective to cause a particular result.’ State v. Beccia, supra, 4. Therefore, the transgression that caused the victim’s injuries was either intentional or reckless; it could not, at one and the same time, be both. Id.; People v. Lucas, 132 Ill. 2d 399, 442, 548 N.E.2d 1003 (1989); People v. Gallagher, 69 N.Y.2d 525, 529, 508 N.E.2d 909, 516 N.Y.S.2d 174 (1987); People v. Robinson, 145 App. Div. 2d 184, 186, 538 N.Y.S.2d 122 (1989), aff’d, 75 N.Y.2d 879, 553 N.E.2d 1021, 554 N.Y.S.2d 473 (1990). Where a determination is made that one mental state exists, to be legally consistent the other must be found not to exist. People v. Spears, [112 Ill. 2d 396, 403-404, 493 N.E.2d 1030 (1986)]; People v. Hoffer, 106 Ill. 2d 186, 195, 478 N.E.2d 335, cert. denied, 474 U.S. 847,106 S. Ct. 139, 88 L. Ed. 2d 114 (1985). ‘By no rational theory could the jury have found the defendant guilty of both crimes.’ People v. Gallagher, supra, 530; People v. O’Toole, 138 App. Div. 2d 639, 640, 526 N.Y.S.2d 223 (1988).” State v. King, supra, 593-94.

The problem that the jury’s inconsistent verdict creates is that neither the trial court in the defendant’s civil case, the Appellate Court, nor this court had or have any means of determining from the record which state of mind the jury found that the defendant possessed when he shot the plaintiff. See id., 594-95. Because the defendant could not simultaneously have had mutually exclusive states of mind, there remains a question of fact as to which state of mind he did have. Because that question of fact was not resolved in the criminal litigation, and the resolution of that question is crucial to the determination of the viability of the defendant’s special defense, the doctrine of collateral estoppel should not have been invoked and the plaintiff’s motion for summary judgment should not have been granted. Practice Book § 384; Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 488, 280 A.2d 359 (1971).

The judgment of the Appellate Court is reversed and the case is remanded to the Appellate Court with direction to remand the case to the trial court with direction to vacate the damage award and to deny the plaintiff’s motion for summary judgment.

In this opinion the other justices concurred.

       The defendant was also charged with murder and assault in the second degree as a result of the same incident. Those charges, however, related to other victims. The charge of assault in the first degree is the only charge pertinent to this appeal.

       General Statutes § 53a-59 (a) provides in pertinent part: “assault in the first degree: class B felony, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or (2) with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person; or (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person.”

       Although the jury convicted the defendant under both General Statutes § 53a-59 (a) (1) and (3) and the record reflects both convictions, the trial judge sentenced the defendant under § 53a-59 (a) (3) apparently to avoid the necessity of imposing a mandatory minimum sentence under § 53a-59 (b).

       See footnote 2, supra.

       “[General Statutes] Sec. 53-203. unlawful discharge of firearms. Any person who intentionally, negligently or carelessly discharges any firearm in such a manner as to be likely to cause bodily injury or death to persons or domestic animals, or the wanton destruction of property shall be fined not more than two hundred fifty dollars or imprisoned not more than three months or both.’’

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

       The plaintiff’s claim of intentional conduct would be governed by General Statutes § 52-577, which provides for a three year statute of limitations.

       “1. Whether the Appellate Court was correct in concluding that since the defendant did not appeal the criminal judgment, a reviewing court was precluded from considering the entire proceedings of the criminal trial in deciding that the conviction in the criminal case was on both theories of intentional and reckless assault?
      “2. Whether the Appellate Court was correct in concluding that the issue of intentional assault was necessarily determined in the prior criminal action?
      “3. Whether the Appellate Court was correct in concluding that the doctrines of mutuality and privity should not be applied to preclude collateral estoppel in those instances in which a criminal case is followed by a civil case against a defendant convicted in the prior criminal action?” Griffin v. Parker, 216 Conn. 825, 582 A.2d 204 (1990).

       General Statutes § 53a-3 (11) provides: “A person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.”


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    William Streitweiser v. Middlesex Mutual Assurance Company
    (14239)
    Peters, C. J., Shea, Glass, Covello and F. X. Hennessy, Js.

      Argued April 24
    decision released June 25, 1991

      Brian T. Fischer, with whom, on the brief, was Robert LaFrance, certified legal intern, for the appellant (plaintiff).

      Jon S. Berk, for the appellee (defendant).

      Suzanne G. Martin-Esposito, William I. Garfinkel and William F. Gallagher filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.
   Peters, C. J.

The dispositive issue reserved for our advice in this case is whether this state’s legislative policy mandating insurance protection for someone injured by an identifiable uninsured motorist extends to an accident caused by an unidentified vehicle that has no physical contact with the injured claimant. The plaintiff, William Streitweiser, brought an action to vacate an arbitration award that had denied his claim for uninsured motorist coverage under a policy issued by the defendant, Middlesex Mutual Assurance Company. The trial court, in accordance with the parties’ stipulation of the relevant facts, reserved the applicable question of law concerning insurance coverage to the Appellate Court. We transferred the reserved question to this court pursuant to Practice Book § 4023. Our answer to the reserved question is “yes.”

The parties stipulated that, on May 6,1989, the plaintiff, while operating his 1979 Cadillac eastbound on 1-95 in Guilford, lost control of his car after being cut off by the driver of an unidentified vehicle. The plaintiff’s car struck a light stanchion and he suffered personal injuries. There was no physical contact between the plaintiff’s car and the unidentified car.

At the time of the accident, the plaintiff was an insured under a personal automobile insurance policy issued by the defendant that provided coverage for injuries caused by an uninsured motorist. The policy’s uninsured motorist provisions included coverage for injuries caused by a hit and run vehicle that hit a covered person or vehicle.

The arbitrators who were asked to adjudicate this case on the stipulated facts determined, by a divided vote, that the plaintiffs accident was not covered by his uninsured motorist insurance and that the defendant was therefore entitled to prevail. The majority concluded that, in the absence of physical contact, both the terms of the insurance policy and the governing case law required an award in favor of the defendant. The dissenting arbitrator concluded, to the contrary, that “[a] non-contact hit and run vehicle is de facto uninsured” and therefore triggers uninsured motorist insurance coverage.

As a result of the plaintiff’s application to vacate the arbitration award, the trial court, at the request of the parties, reserved a question of law for appellate consideration and advice. The reserved question requires us to adjudicate the legal consequences of an accident caused by an unidentified vehicle that, without physical contact, causes injury to an individual or an automobile otherwise covered by uninsured motorist insurance. This question has two subparts: (1) Do the terms of the plaintiff’s insurance policy entitle him, as a matter of contract construction, to indemnification for the accident? (2) Does the public policy of this state entitle the plaintiff to indemnification, even if his insurance policy does not so provide?

Because General Statutes (Rev. to 1989) § 38-175c (a) (1) mandates arbitration of issues of coverage relating to uninsured motorist insurance, a “reviewing court must conduct a de novo review of the interpretation and application of the law by the arbitrators.” American Universal Ins. Co. v.DelGreco, 205 Conn. 178, 191, 530 A.2d 171 (1987); Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 655 n.11, 591 A.2d 101 (1991). Undertaking that plenary review, we conclude that, although the plaintiff cannot prevail as a matter of contract law, he is entitled to recover because of the public policy favoring uninsured motorist coverage as set forth in § 38-175a-6 (a) of the Regulations of Connecticut State Agencies.

I

Well established rules of contract construction counsel us, in the event of ambiguity, to construe the terms of an insurance policy in favor of insurance coverage because it is the insurance company that has drafted the terms of the policy. Schultz v. Hartford Fire Ins. Co., 213 Conn. 696, 702, 569 A.2d 1131 (1990); Beach v. Middlesex Mutual Assurance Co., 205 Conn. 246, 250, 532 A.2d 1297 (1987); Griswold v. Union Labor Life Ins. Co., 186 Conn. 507, 512-13, 442 A.2d 920 (1982); see also 2 Restatement (Second), Contracts (1981) § 206. “[A] limitation of liability on uninsured or underinsured motorist coverage must be construed most strongly against the insurer.” American Universal Ins. Co. v. DelGreco, supra, 196. A necessary predicate to this rule of construction, however, is a determination that the terms of the insurance policy are indeed ambiguous. Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 583-84, 573 A.2d 699 (1990).

The plaintiff maintains that the policy issued by the defendant is ambiguous in its definition of a hit and run vehicle for which uninsured motorist coverage is available. The policy purports to limit such coverage to “a hit and run vehicle whose operator or owner cannot be identified and which hits” a covered person or auto. The plaintiff asserts that “hits” is ambiguous because dictionary definitions of “hit” include “affect strongly and adversely” and thus contemplate circumstances other than physical contacts. See Webster’s Third New International Dictionary. We are unpersuaded.

In context, the policy’s reference to “a hit and run vehicle . . . which hits” is not ambiguous. Contractual coverage for any hit and run accident necessarily contemplates that the insured has suffered adverse consequences, because otherwise there would be no occasion for indemnification. The addition of the phrase “which hits” would be superfluous unless it was intended to limit the circumstances under which indemnification is payable for injuries arising out of such accidents. If it is reasonably possible to do so, every provision of an insurance policy must be given operative effect. A. M. Larson Co. v. Lawlor Ins. Agency, Inc., 153 Conn. 618, 621-22, 220 A.2d 32 (1966). The natural and ordinary meaning of “hits” must therefore be taken to express the intent of the parties. See Hammer v. Lumberman’s Mutual Casualty Co., supra. So construed, the coverage afforded to the plaintiff is limited, as a matter of contract law, to hit and run accidents involving physical contact with the tortfeasor.

II

The plaintiff maintains that, as a matter of public policy, the defendant was not entitled contractually to exclude from uninsured motorist coverage his right to indemnification for injuries he sustained as a result of his encounter with the tortfeasor, even though there was an absence of any physical contact between them. He relies on the strong public policy favoring uninsured motorist coverage that has marked our legislative and regulatory history since 1967, and on a trial court opinion by Judge Clark in a factually similar case, Fox v. Fidelity & Casualty Co., Superior Court, judicial district of New Haven, Docket No. 86-0250977S (January 30, 1987).

The legislative policy favoring uninsured motorist coverage is contained in General Statutes (Rev. to 1989) § 38-175c (a) (1), which requires every automobile liability insurance policy to include such coverage “for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles . . . .” The accompanying regulation, § 38-175a-6 (a) of the Regulations of Connecticut State Agencies, accordingly provides: “The insurer shall undertake to pay on behalf of the insured all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured caused by an accident involving the uninsured motor vehicle. ...”

This regulatory pattern establishes the public policy that “every insured is entitled to recover for the damages he or she would have been able to recover if the uninsured motorist had maintained a policy of liability insurance. Insurance companies are powerless to restrict the broad coverage mandated by the statute.” Harvey v. Travelers Indemnity Co., 188 Conn. 245, 249, 449 A.2d 157 (1982). To implement this established policy, we have held repeatedly that “an insurer may not, by contract, reduce its liability for such uninsured or underinsured motorist coverage except as § 38-175a-6 of the Regulations of Connecticut State Agencies expressly authorizes.” (Emphasis added.) Allstate Ins. Co. v. Ferrante, 201 Conn. 478, 483, 518 A.2d 373 (1986); Dixon v. Empire Mutual Ins. Co., 189 Conn. 449, 452-53, 456 A.2d 335 (1983); Nationwide Ins. Co. v. Gode, 187 Conn. 386, 398-99, 446 A.2d 1059 (1982); Safeco Ins. Co. v. Vetre, 174 Conn. 329, 332-33, 387 A.2d 539 (1978); Pecker v. Aetna Casualty & Surety Co., 171 Conn. 443, 448-51, 370 A.2d 1006 (1976). Significantly, the applicable regulations do not expressly exclude uninsured motorist coverage for accidents in which the tortfeasor’s conduct, without physical contact, causes an otherwise covered insured to sustain personal injuries.

This history would require us to answer the reserved question in favor of insurance coverage, but for two cases in which a majority of this court determined that an accident caused by an unidentified vehicle that made no contact with the vehicle of an injured claimant was not an accident caused by an uninsured motorist. In Weingarten v. Allstate Ins. Co., 169 Conn. 502, 507, 363 A.2d 1055 (1975), the court concluded that the statutory and regulatory reference to “uninsured motorist” was not intended to include “what are commonly called hit-and-run operators.” In Rosnick v. Aetna Casualty & Surety Co., 172 Conn. 416, 423, 374 A.2d 1076 (1977), the court concluded that an insurance policy extending coverage to “hit and run” situations could validly include “the requirement of physical contact between a vehicle and the insured or a vehicle occupied by the insured at the time of the accident.” Both cases engendered vigorous dissents on public policy grounds. We have had no occasion, since 1977, to reexamine their merits.

The plaintiff urges us to hold that the terms of his insurance policy are distinguishable from those in Rosnick. The Aetna policy in that case unequivocally required “physical contact” as a condition for extending uninsured motorist coverage to encompass hit and run accidents; id., 421; while the Middlesex policy in this case merely refers to a hit and run vehicle that “hits.” That is a distinction without a difference. We see no functional difference in the relevant language of the two policies.

The fundamental issue is whether we should reconsider Rosnick and Weingarten in light of the public policy expressed in Harvey v. Travelers Indemnity Co., supra, and Allstate Ins. Co. v. Ferrante, supra. The defendant urges us not to do so because the legislature, having undertaken to amend § 38-175c on several occasions since 1977, has not changed the rulings of Rosnick and Weingarten and has therefore impliedly incorporated those rulings into the statute. We are unpersuaded that legislative inaction invariably warrants recognition as a reliable indicator of legislative intent. The legislature has been as silent in its response to our holdings in Harvey and Allstate Ins. Co. as it was to our holdings in Rosnick and Weingarten. Because these diverse holdings look in different directions, the legislature cannot logically have acquiesced in them all. Furthermore, as we recently noted in Greenwich v. Department of Public Utility Control, 219 Conn. 121, 127-28 n.6, 592 A.2d 372 (1991), even legislative inaction is “ ‘not the best of guides to legislative intent.’ ” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381-82 n.11, 89 S. Ct. 1794, 23 L. Ed. 2d 371 (1969). We conclude, therefore, that we may appropriately reconsider Rosnick and Weingarten, and that we should overrule their holdings with respect to uninsured motorist coverage.

The starting point for revisiting this issue is that, with respect to uninsured motorist coverage in general, we can discern no viable distinction between identified and unidentified uninsured tortfeasors. From the point of view of the injured claimant whom § 38-175c is intended to protect, it does not matter whether the tortfeasor is a known person who is uninsured or underinsured or an unidentified motorist whose insurance coverage, if any, is functionally unavailable. Indeed, the policy coverage bought by the plaintiff in this case expressly provides some uninsured motorist coverage in either case.

The only obstacle to the plaintiffs indemnification is therefore a policy condition that limits uninsured motorist coverage when an unidentified motorist causes physical injury without physically making contact with the claimant or his automobile. Assigning a dispositive role to physical contact in this case would, however, be inconsistent with prevailing legal principles for four reasons. First, in the case of accidents caused by identified uninsured motorists, physical contact is not a prerequisite to uninsured motorist coverage. Second, the regulatory provisions that most directly pertain to this situation, General Statutes (Rev. to 1989) § 38-175c, and § 38-175a-6 (a) of the Regulations of Connecticut State Agencies, do not expressly interpose physical contact as a condition to recovery. Third, physical contact is not an element of the parallel provision in our criminal law, which imposes sanctions on hit and run drivers for the crime of evasion of responsibility in the operation of motor vehicles. Under General Statutes § 14-224, liability turns on the factual question of whether the operator was knowingly involved in an accident that caused physical injury, and not on whether the accident arose out of physical contact with another person. Fourth, an insistence on physical contact would lead to the bizarre result of providing uninsured motorist coverage for the less vigilant driver who does not avoid a collision but denying such coverage to the more adroit driver who manages to avoid this greater hazard. Nothing in our legal landscape supports so anomalous a distinction.

There are, on the contrary, sound affirmative reasons for recognizing the liability of the tortfeasor, and for imposing responsibility for indemnification on the insurer, without regard to physical contact. As elsewhere in our law, liability ordinarily flows from the breach of a duty and the injury proximately related thereto, rather than from the manner in which the breach of that duty becomes manifest. “It will be recalled that in tort law it is certainly not essential that contact be had in order for liability to arise.” 8C J. & J. Appleman, Insurance Law and Practice (Rev. Ed. 1981) § 5095.25, p. 421. Imposing liability for reimbursement on the defendant is particularly appropriate in this case, where the parties have stipulated to the fact of the existence of a causal relationship between the conduct of the hit and run driver and the injuries sustained by the plaintiff.

Our conclusion that a physical contact requirement is inconsistent with statutorily mandated uninsured motorist coverage finds support in the case law elsewhere. The leading academic authority on uninsured motorist insurance reports that a majority of American courts have now rejected such a limitation in whole or in part as an unjustifiable deviation from the legislative goals of uninsured motorist legislation. A. Widiss, Uninsured and Underinsured Motorist Insurance (1990 Ed.) §§ 9.2-9.9, esp. pp. 458, 485 and 491. Among the state cases that have taken that posture since 1977 are State Farm Mutual Automobile Ins. Co. v. Abramowicz, 386 A.2d 670, 674 (Del. 1978); Simpson v. Farmers Ins. Co., 225 Kan. 508, 515, 592 P.2d 445 (1979); Lanzo v. State Farm Mutual Auto Ins. Co., 524 A.2d 47, 50 (Me. 1987); Lee v. Wheeler, 310 Md. 233, 243, 528 A.2d 912 (1987); Surrey v. Lumbermens Mutual Casualty Co., 384 Mass. 171, 178, 424 N.E.2d 234 (1981); Merchants Mutual Ins. Group v. Orthopedic Professional Assn., 124 N.H. 648, 653-54, 480 A.2d 840 (1984); Perez v. American Bankers Ins. Co., 81 N.J. 415, 419, 409 A.2d 269 (1979); Pin Hin H. Su v. Kemper Ins. Companies/American Motorists Ins. Co., 431 A.2d 416, 419 (R.I. 1981); and Marakis v. State Farm Fire & Casualty Co., 765 P.2d 882, 885 (Utah 1988); contra Boyd v. Inter-Insurance Exchange of Automobile Club of Southern California, 136 Cal. App. 3d 761, 764, 186 Cal. Rptr. 443 (1982); Stamper v. Allstate Ins. Co., 115 Idaho 237, 766 P.2d 707 (1988); Lemke v. Kenilworth Ins. Co., 109 Ill. 2d 350, 354, 487 N.E.2d 943 (1985); Rohret v. State Farm Mutual Automobile Ins. Co., 276 N.W.2d 418, 421 (Iowa 1979); Belcher v. Travelers Indemnity Co., 740 S.W.2d 952, 953 (Ky. 1987); State Automobile Mutual Ins. Co. v. Rowe, 28 Ohio St. 3d 143, 145, 502 N.E.2d 1008 (1986); Hayne v. Progressive Northern Ins. Co., 115 Wis. 2d 68, 85, 339 N.W.2d 588 (1983).

Although we now choose to follow the path taken by the majority of state courts, and advocated by the commentators; see A. Widiss, supra; 8C J. & J. Appleman, supra; we recognize that the minority position upholding the physical contact requirement addresses a legitimate concern. In the absence of physical contact, there is a risk that a claimant may conjure up a phantom motorist to explain a one-car accident for which the claimant was in fact entirely responsible. Insurance coverage must be limited to cases in which there is some reasonable assurance of sufficient evidence to establish a causal connection between the injuries sustained by the claimant and the alleged negligence of the alleged hit and run motorist.

To minimize the risk of fraudulent assertion of uninsured motorist claims, it may well be appropriate to adopt “[s]ome standard of corroboration to support a claimant’s contention that the injuries for which compensation is sought were indeed caused by a hit-and-run motorist . . . .” A. Widiss, supra, § 9.4, p. 448; see Brown v. Progressive Mutual Ins. Co., 249 So. 2d 429, 430 (Fla. 1971); but see contra Perez v. American Bankers Ins. Co., supra (corroboration requirement invalid as contrary to public policy); and cf. Mosher v. Bennett, 108 Conn. 671, 674, 144 A. 297 (1929) (putative father must dispute paternity “by other evidence than his own”). Even though corroboration requirements have a statutory foundation in some states; see, e.g., Ga, Code Ann. § 33-7-11 (b) (2) (1990); Or. Rev. Stat. § 743.792 (g) (B) (1981); Wash. Rev. Code Ann. § 48.22.030 (8) (a) (1989); we do not doubt our authority to require a claimant, if he is put to his proof, to present some evidence to corroborate his representation of how the accident occurred. Because the parties in this case stipulated to the existence of a causal relationship between the plaintiff’s injuries and the unidentified vehicle that he swerved to avoid we need not resolve this issue today.

To the reserved question, “Does the Middlesex policy as governed by the General Statutes and the insurance regulations afford uninsured motorist protection to the plaintiff in a case where there was no physical contact between the vehicle of the tortfeasor and that of the plaintiff and the operator and owner of the tortfeasing vehicle are unidentified?”, our answer is “yes.” The case is therefore remanded to the trial court with direction to vacate the arbitration award in favor of the defendant.

No costs shall be taxed to either party.

In this opinion the other justices concurred.

       The question reserved by the trial court is: “Does the Middlesex policy as governed by the General Statutes and the insurance regulations afford uninsured motorist protection to the plaintiff in a case where there was no physical contact between the vehicle of the tortfeasor and that of the plaintiff and the operator and owner of the tortfeasing vehicle are unidentified?”

       Part C of the insurance policy issued by the defendant described the policy’s uninsured motorist coverage. The policy obligated the defendant to pay damages because of bodily injury arising “out of the ownership, maintenance or use of the uninsured motor vehicle.” The policy defined the term “uninsured motor vehicle” as “a land motor vehicle or trailer of any type:
      1. To which no bodily injury liability bond or policy applies at the time of the accident.

        2. For which the sum of the limits of liability under all bodily injury liability bonds or policies applicable at the time of the accident is less than the sum of the limits of liability for Uninsured Motorist Coverage applicable under this policy.
      3. Which is a hit and run vehicle whose operator or owner cannot be identified and which hits:
      (a) You or any family members;
      (b) a vehicle which you or any family member are occupying; or
      (c) your covered auto.
      4. To which a bodily injury liability bond or policy applies at the time of the accident but the bonding or insuring company:
      (a) denies coverage; or
      (b) is or becomes insolvent.”


author: Per Curiam.

text:
    State of Connecticut v. Norman Ebenstein et al.
    (14266)
    Peters, C. J., Callahan, Glass, Covello and Santaniello, Js.
    Argued May 30
    decision released July 2, 1991

      Donald R. Holtman, for the appellant (defendant Ebenstein and Ebenstein, P.C.).

      Edward F. Reynolds, Jr., assistant attorney general, with whom were William J. Wholean, assistant attorney general, and, on the brief, Richard J. Blumenthal, attorney general, for the appellee (state).
   Per Curiam.

General Statutes § 17-83f (a) gives the state a statutory .lien on the proceeds of lawsuits pursued on behalf of recipients of unreimbursed public assistance. The dispositive issue in this appeal is whether an order requiring attorneys holding such proceeds to provide an accounting, so as to enable the state to enforce its § 17-83f (a) lien, is a final judgment from which the attorneys are entitled to take an immediate appeal.

The plaintiff, the state of Connecticut (state), brought this action seeking damages and injunctive relief from the defendants Norman Ebenstein and Ebenstein & Ebenstein, P.C. (attorneys), alleging that each of fifty-two named welfare clients had been represented by the attorneys in a claim for damages as a result of which each claimant had become entitled to a sum of money. In response to the attorneys’ contention that the state had been properly reimbursed by payments previously made, the state sought injunctive relief compelling the attorneys to provide information relevant to the calculation of the amount due the state. The trial court granted the state’s motion for partial summary judgment for this purpose. The attorneys appealed to the Appellate Court and we transferred the appeal here pursuant to Practice Book § 4023. We now dismiss the appeal for lack of a final judgment.

The contours of a final judgment are established by the two part test set out in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). Under Curdo, an interlocutory order may be appealed immediately only if: (1) the order or action terminates a separate or distinct proceeding, or (2) the order or action so concludes the rights of the parties that further proceedings cannot affect them. In our view, the present interlocutory order does not qualify for immediate appealability under either test.

The parties’ argument in favor of appealability has focused on the first Curdo test. Both the state and the attorneys urge us to conclude that the injunctive order for an accounting in this case is a separate proceeding warranting independent appellate resolution. We are unpersuaded.

The only authority for the state’s claim for injunctive relief is § 17-83f (a), which gives the state a lien against the proceeds of causes of action of beneficiaries of state aid “in the amount of the assistance paid or fifty per cent of the proceeds received” after payment of specified expenses. At oral argument, the state acknowledged that this statute confers no right to an accounting except insofar as such an accounting is a requisite to enforcement of the state’s statutory lien. To enforce that lien, the complaint filed by the state sought money damages as well as injunctive relief. Read in its entirety, this complaint belies the assertion that the only object of the state’s lawsuit was to require disclosure of the information sought in the request for injunctive relief.

An ancillary injunctive order requiring an accounting is no more a final judgment than is an ancillary order for the appointment of a receiver. We have consistently held that an order granting a request for a rent receivership in a foreclosure action is not a final judgment, even though such an order provides additional security for the foreclosing mortgagee and impairs the ownership rights of the mortgagor. Hartford National Bank & Trust Co. v. Tucker, 195 Conn. 218, 223, 487 A.2d 528, cert. denied, 474 U.S. 845, 106 S. Ct. 135, 88 L. Ed. 2d 111 (1985); Hartford Federal Savings & Loan Assn. v. Tucker, 192 Conn. 1, 3-5, 469 A.2d 778 (1984); Young v. Polish Loan & Industrial Corporation, 126 Conn. 714, 715, 11 A.2d 395 (1940). A receivership in advance of a final resolution of the dispute between the parties is not an appealable order because “[a]ll of the parties concerned in the . . . controversy will still be before the court when the ultimate determination of their rights in respect to the distributton of the rents is made after the mortgaged premises are sold.” Hartford National Bank & Trust Co. v. Tucker, supra, 225. That rationale applies here.

The attorneys urge, however, that the appropriate analogy is not a rent receivership but a bill of discovery. They point to several cases in which this court reached the merits of judgments rendered in actions for bills of discovery without apparent concern about their immediate appealability. See, e.g., Pottetti v. Clifford, 146 Conn. 252, 150 A.2d 207 (1959); Peyton v. Werhane, 126 Conn. 382, 11 A.2d 800 (1940). Those cases reflect, however, the special nature of bills of discovery. Before revision of the rules of practice made discovery generally available, an independent bill of discovery was the only procedural vehicle by which “a party to an action at law could obtain the same discovery from an adversary that he could obtain had the action been in equity.” 1 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 136, p. 562. Such a bill of discovery, although in fact ancillary to another action, was procedurafly “an independent action [that had to] be initiated by a new writ and complaint, served on the person from whom discovery is sought in the same manner as for any in personam action.” Id., § 143 (e), p. 602. Because the bill of discovery was an independent action, its merits could only be reviewed in an independent appeal.

The procedural constraints that surround a bill of discovery do not apply to the present injunctive order for an accounting. As in Hartford National Bank & Trust Co. v. Tucker, supra, the parties in this case will “still be before the court” upon a final determination of their respective rights to the proceeds of lawsuits brought on behalf of recipients of public assistance. Because the partial summary judgment rendered by the trial court is ancillary to the adjudication of the state’s statutory lien pursuant to § 17-83f (a), the judgment has not terminated a proceeding so separate or distinct as to satisfy the first test of State v. Curcio, supra.

Our precedents equally establish that the injunctive order for an accounting does not satisfy the alternative Curcio test of an order or action that so concludes the rights of the parties that further proceedings cannot affect them. The attorneys’ principal objection to enforcement of the trial court’s order rests on their allegation that they have an ethical obligation to treat as confidential the information that they have gained in the course of representing their clients. While it is true that the confidentiality of information cannot be fully retrieved once disclosure has been ordered, we have repeatedly ruled against the immediate appealability of ancillary discovery orders that seek such information in civil cases. Melia v. Hartford Fire Ins. Co., 202 Conn. 252, 255-58, 520 A.2d 605 (1987); Barbato v. J. & M. Corporation, 194 Conn. 245, 249-50, 478 A.2d 1020 (1984); see also Chrysler Credit Corporation v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 226, 429 A.2d 478 (1980). As we pointed out in Melia, the risk of impairment of the attorney-client privilege is not limited to pretrial disclosure orders but can as easily arise in “a ruling on evidence during trial, which would have to await final judgment for appellate review unless trials were to be interrupted whenever such a ruling occurred.” Melia v. Hartford Fire Ins. Co., supra, 257. Because appellate review after a final judgment can provide significant safeguards with respect to the use of privileged materials, we adhere to our holdings that invocation of a privilege does not demonstrate that the rights of the parties have been so concluded that further proceedings cannot affect them. Accordingly, we hold that the injunctive order for an accounting fails to satisfy the second Curcio test for immediate appealability.

The appeal is dismissed.

       General Statutes § 17-83f provides in relevant part: “(a) In the case of causes of action of beneficiaries of aid under this chapter, subject to subsections (b) and (c) of section 17-83e, or of a parent of a beneficiary of the aid to families with dependent children program, the claim of the state shall be a lien against the proceeds therefrom in the amount of the assistance paid or fifty per cent of the proceeds received by such beneficiary or such parent after payment of all expenses connected with the cause of action, whichever is less, for repayment under section 17-83e, and shall have priority over all other claims except attorney’s fees for said causes, expenses of suit, costs of hospitalization connected with the cause of action by whomever paid over and above hospital insurance or other such benefits, and, for such period of hospitalization as was not paid for by the state, physicians’ fees for services during any such period as are connected with the cause of action over and above medical insurance or other such benefits; and such claim shall consist of the total assistance repayment for which claim may be made under the provisions of this chapter. The proceeds of such causes of action shall be assignable to the state for payment of the amount due under said section 17~83e, irrespective of any other provision of law. Upon presentation to the attorney for the beneficiary of an assignment of such proceeds executed by the beneficiary or his conservator or guardian, such assignment shall constitute an irrevocable direction to the attorney to pay the commissioner of administrative services in accordance with its terms, except if, after settlement of the cause of action or judgment thereon, the commissioner of administrative services does not inform the attorney for the beneficiary of the amount of lien which is to be paid to the commissioner of administrative services within thirty days of receipt of the written request of such attorney for such information, such attorney may distribute such proceeds to such beneficiary and shall not be liable for any loss the state may sustain thereby.”
      For relevant purposes, the statute has not changed since it was enacted in 1984.

       The terms of the injunction ordered Ebenstein & Ebenstein, P.C., to “cease withholding complete and accurate information from the Plaintiff, concerning its claim for money damages, which is necessary for the proper calculation of the amount due Plaintiff on its Connecticut General Statutes Section 17-83f lien” and to provide “complete and accurate information [consisting] of the following:
      1. As to each cause of action described in each of the fifty-two counts of the complaint:
      (a) The amount of the gross proceeds of the cause of action;
      (b) The amount of attorneys fees paid to Defendants and the itemized amount of expenses and costs of suit;
      (c) The itemized costs of hospitalization, by whomever paid, over and above hospital insurance and other such benefits for such period of hospitalization as was not paid for by the State;
      (d) The physicians’ fees for services during any period connected with the cause of action, not paid for by the State, over and above medical insurance or other such benefits (itemized as to name and address of physician and amount);
      (e) All other disbursements from the proceeds of the cause of action, including the amount paid to the client and the amount paid to the State of Connecticut, Plaintiff herein, under Connecticut General Statutes Section 17-831”

       Although the trial court’s partial summary judgment grants injunctive relief only as against Ebenstein & Ebenstein, P.C., and only that defendant has filed an appeal, we will refer to the defendant as “the attorneys.”

       While this appeal was pending before the Appellate Court, that court sua sponte raised the issue of whether the partial summary judgment was a final judgment and invited briefing of that issue as part of the argument on the plenary appeal. Because appellate jurisdiction, absent special statutory dispensation, depends upon the existence of a final judgment; General Statutes §§ 51-199, 52-263; this issue must be addressed even though both parties urge us to reach their substantive disagreement on its merits.

       When the legislature has authorized the state to require an independent accounting that is not ancillary to a substantive claim by the state for some form of recovery, the legislature has done so expressly. See, e.g., General Statutes § 21a-190c (charitable organizations required to file annual fiscal reports), § 36-188 (savings and loan associations subject to annual accounting), § 38a-18 (a) (2) (domestic insurance companies required to submit to accounting).

       The prayer for relief claimed:
      “(a) Money damages.
      (b) Punitive damages.
      (c) Interest for the wrongful detention of money after it became due.
      (d) An injunction ordering the defendants to cease withholding complete and accurate information to the plaintiff, concerning said claims for money damages, which is necessary for the proper calculation of the amount due the plaintiff on its Connecticut General Statutes § 17-83f liens regarding the aforementioned 52 Counts.
      (e) An injunction ordering the defendants to cease and desist from its [sic] pattern and practice of withholding complete and accurate information from the plaintiff, which is necessary for the proper calculation of amounts due the plaintiff under its Connecticut General Statutes § 17-83f liens.
      (f) Any further equitable relief the Court deems proper.”


author: Shea, J.

text:
    William Gaudet v. Safeco Insurance Company
    (14128)
    Peters, C. J., Shea, Glass, Covello and F. X. Hennessy, Js.
    Argued April 24
    decision released July 2, 1991

      James J. Ruane, for the appellant (plaintiff).

      James M. Connolly, with whom was Wilfred J. Rodie, Jr., for the appellee (defendant).
   Shea, J.

In this case, we are asked to consider whether an insurer can resist mandatory arbitration of an uninsured motorist insurance claim on the ground that the claimant seeking arbitration is not entitled to enforce the policy’s arbitration provision because he may be barred by statute from receiving benefits under the policy. We hold that in an action to compel arbitration of an uninsured motorist insurance claim the court should order arbitration of this issue as well as all other issues that may reasonably be characterized as issues of coverage. Because the trial court in this case sought to resolve in the first instance a legal issue pertaining to a claim for uninsured motorist coverage, instead of granting the claimant’s request for arbitration, we reverse.

The plaintiff, William Gaudet, filed a complaint against the defendant, Safeco Insurance Company (Safeco), seeking an order compelling Safeco to arbitrate Gaudet’s claim for uninsured motorist coverage. The complaint alleged that on September 25, 1987, when the accident that caused Gaudet’s injuries occurred, Gaudet had been a passenger in an automobile owned by Stephen A. Chilinsky and insured by Safeco. The automobile allegedly had been operated by James Robinson, who was uninsured. Safeco answered by a general denial and raised one special defense: “The plaintiff is precluded from recovering pursuant to Connecticut General Statutes § 38-331.” Gaudet moved to strike this defense. In opposing the motion, Safeco claimed that Gaudet and Robinson had stolen the Chilinsky vehicle, that § 38-331 barred Gaudet from recovering uninsured motorist’s benefits under Chilinsky’s policy, and that, because the statute barred Gaudet from recovering under the policy, the statute also prevented him from compelling arbitration of his coverage claim. In response, Gaudet asserted that he was a friend of Chilinsky’s daughter, Magdalena, and had believed he had her implied permission to use the vehicle, that in any event, § 38-331 did not apply to claims for uninsured motorist coverage, and that even if it did apply to such claims, the issue presented a mixed question of fact and law to be decided, in the first instance, by an arbitrator. The trial court, Kulawiz, J., agreed with Safeco, and,denied Gaudet’s motion to strike.

During the ensuing three day trial, the court, Meadow, J., heard nine witnesses and entered twenty-one items into evidence. The trial generated 551 pages of transcript. The transcript indicates that neither side presented opening or closing arguments, instead filing pretrial and posttrial briefs. The only issue at trial was whether Gaudet had “converted” the vehicle within the meaning of § 38-331; the only other issues briefed were those previously raised by Gaudet.

In its memorandum of decision, the trial court held that, once Safeco had raised a defense based on § 38-331, Gaudet, as part of his responsibility to prove he was entitled to uninsured motorist insurance benefits, was also required to prove “by a preponderance of the evidence, no conversion or a good faith belief by the applicant that he had permission to use the vehicle under the coverages provided” and that Gaudet “has not met this burden.” The court found that the vehicle had been converted under § 38-331, but that “[t]he evidence did not demonstrate who was the converter, only that the conversion took place and that Gaudet participated in the unlawful activity.” The court concluded that because “Gaudet participated in an unlawful activity,” “public policy prevents recovery.”

I

General Statutes § 38-175c requires binding arbitration for “final determination of insurance coverage” with respect to uninsured motorist claims if the insurance policy includes a provision for binding arbitration. The history of this provision is well documented in our case law. See, e.g., Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 657, 591 A.2d 101 (1991); Oliva v. Aetna Casualty & Surety Co., 181 Conn. 37, 41, 434 A.2d 304 (1980). Suffice it to say that this provision requires arbitration, in the first instance, of all issues pertaining to coverage. Chmielewski v. Aetna Casualty & Surety Co., supra, 658; Oliva v. Aetna Casualty & Surety Co., supra, 42.

Safeco insists that its special defense did not involve an “issue of coverage” because it was based not on the policy, but on the statutes. We have previously rejected such a distinction. Wilson v. Security Ins. Group, 199 Conn. 618, 624, 509 A.2d 467 (1986); see also Lane v. Aetna Casualty & Surety Co., 203 Conn. 258, 265, 524 A.2d 616 (1987).

Safeco also contends that our holding in Oliva v. Aetna Casualty & Surety Co., supra, that all issues of coverage must be decided by the arbitrator in the first instance, does not extend to claims made by “strangers to the contract.” Safeco points out that General Statutes § 52-410 (a) permits only a “party” to a written contract providing for binding arbitration to bring an action to compel the other party to arbitrate his claim.

Technically, the only “parties” to the contract are the insurance company and the purchaser, or, perhaps, the named insureds. In Paranko v. State, 200 Conn. 51, 54, 509 A.2d 508 (1986), we observed, however, that while § 52-410 “limits the availability of the remedy to ‘parties’ . . . the word is not defined.” We concluded that “[t]he term is used generically” so that its “meaning must therefore be derived from the agreement itself.” Id.

Where certain terms of a contract have been, in effect, legislatively dictated, it is appropriate to consider legislative intent in interpreting those terms. Here, the clear legislative purpose favoring arbitration of all uninsured motorist coverage issues would be defeated if it were available only to named insureds. In enacting § 38-175c, the legislature thus implicitly assumed that the word “party” in § 52-410 would encompass all persons to whom the uninsured motorist statute gave enforcement powers. In the context of uninsured motorist coverage, therefore, we conclude that § 52-410 does not exclude enforcement of its terms by third party beneficiaries. We construe the word “party” within § 52-410 to refer to anyone on whom the agreement confers enforcement rights.

Section 52-410 aside, however, Safeco contends that Oliva does not require arbitration of coverage issues until a claimant first has proved his status as an “insured,” at least to the extent of proving that he was not statutorily precluded from being an “insured,” as a condition precedent to asserting a contractual right to enforce the policy’s arbitration clause. Safeco points to language contained in § 38-175c (a) (1), which mandates arbitration of uninsured motorist claims by those “legally entitled” to uninsured motorist insurance benefits.

This is putting the cart before the horse. Were every third party claimant seeking uninsured motorist coverage required to prove first that he ultimately would be entitled to receive the coverage sought in order to compel arbitration of his claim, he would have little left to arbitrate. Such a circular approach to § 38-175c frustrates the legislative intent to vest primary jurisdiction of coverage issues in the arbitrator in order “to avoid the institutional difficulty perceived by the court in Frager [v. Pennsylvania General Ins. Co., 155 Conn. 270, 231 A.2d 531 (1967)], namely, clogging the courts with piecemeal litigation, and leveling the procedural playing field by guarding against the possibility of insurers unfairly using their superior economic resources to delay the final resolution of claims by their insureds.” Chmielewski v. Aetna Casualty & Surety Co., supra, 658. In this case the trial court needlessly consumed three days of court time in order to determine whether Gaudet had converted the Chilinsky vehicle, an issue equally pertinent to the policy exclusion from coverage for an otherwise “covered person” who uses the vehicle without a reasonable belief that he is entitled to do so. The trial court sought to resolve this issue so that the insurer would be spared “costly protracted arbitration” of a claim doomed to failure by a relevant statute. The legislature, however, intended arbitration to prevent more costly and protracted litigation in the courts, not the other way around.

By characterizing the conversion issue as an issue of arbitrability, moreover, the court effectively preempted arbitration of the merits of Gaudet’s claim, whatever its disposition of that issue. Had the trial court found the issue in Gaudet’s favor, collateral estoppel might have foreclosed the arbitrator from considering the insurer’s claim that Gaudet was excluded from coverage because he had used the vehicle without a reasonable belief that he was entitled to do so. Contrary to the intention of the legislature, the trial court’s construction of § 38-175c inevitably requires the court, rather than an arbitrator, first to hear the merits of an uninsured motorist insurance claim.

We adhere to the established rule that “arbitrability .. . is ordinarily a legal question for the courts.” Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 54, 523 A.2d 477 (1987); see also Welch Group, Inc. v. Creative Drywall, Inc., 215 Conn. 464, 467, 576 A.2d 153 (1990). Arbitrability includes the issue of who is entitled to arbitrate a claim. See, e.g., John Wiley & Sons v. Livingston, 376 U.S. 543, 546-47, 84 S. Ct. 909, 11 L. Ed. 2d 898 (1964). Where an issue may fairly be characterized as either (1) an issue of arbitrability, i.e., a question for the courts to decide in the first instance, or (2) an issue of insurance coverage, i.e., a question for an arbitrator to decide in the first instance, legislative policy requires the court to elect the latter characterization and submit the issue to the arbitrator together with all other issues of insurance coverage. In this case, “it was the trial court’s obligation to decide first whether the issue was arbitrable, that is, whether the claim involved a coverage dispute. Only if the court answered no to this question should the court have reached the merits of the defendant’s claim.” (Emphasis added.) Security Ins. Co. of Hartford v. DeLaurentis, 202 Conn. 178, 187-88, 520 A.2d 202 (1987).

In order to compel arbitration under § 52-410, therefore, one claiming uninsured motorist coverage need prove to the court only that (1) the policy was in effect at the time of the accident, (2) the policy provides for arbitration, (3) the claimant was in the class of “covered persons,” e.g., as provided in the Chilinsky policy, an owner, occupant or driver of the insured vehicle, for whom the policy provided uninsured motorists’ coverage, and (4) the insurer has refused to pay the claim for uninsured motorist benefits arising out of the claimed accident. The claimant must also state the nature of the claim to be arbitrated, which would ordinarily include allegations that his injuries were caused in a manner that, under the terms of the policy and applicable statutes, entitle him to uninsured motorist benefits, and that there is no other coverage adequate to satisfy his claim. Gaudet met these requirements and was entitled to arbitrate his claim.

II

Judicial economy would scarcely be served, however, if we remanded the case for arbitration without reviewing the trial court’s conclusion that, as a matter of law, § 38-331 (now § 38a-375) bars recovery of uninsured motorist benefits under an automobile owner’s policy by the converter of a vehicle. We ordinarily address legal issues likely to arise following a remand for further proceedings. See, e.g., Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 605-606, 590 A.2d 447 (1991).

The language of § 38-331 is plain. It begins: “A person who converts a private passenger motor vehicle is disqualified from basic or added reparations benefits as provided in this chapter, including benefits otherwise due him as a survivor, from any source other than an insurance policy under which the converter is a basic or added reparations insured . . . .” (Emphasis added.) The “chapter” referred to is chapter 690 of the General Statutes, entitled “No-Fault Motor Vehicle Insurance.” Section 38-331 does not purport to limit benefits available under any other chapter, such as chapter 681 of the General Statutes, the chapter containing § 38-175c, entitled “Uninsured Motorist Coverage.” It plainly limits only “basic or added reparations benefits,” that is, “no-fault” benefits.

Safeco maintains, however, that General Statutes §§ 38-326 and 38-327, which require motorists to maintain “residual liability insurance,” incorporate uninsured motorist coverage required by § 38-175c into chapter 690 and indicate a legislative intent to include uninsured motorist coverage within the “benefits” which § 38-331 disqualifies a converter from receiving. The general references in §§ 38-326 and 38-327 to other insurance coverage cannot be given the effect of altering the plain language of § 38-331. The phrase of § 38-331 upon which Safeco relies, moreover, “including benefits otherwise due him as a survivor, from any source other than an insurance policy under which the converter is a basic or added reparations insured,” only modifies the term “basic or added reparations benefits”; it does not set out an additional category of benefits from which a converter is to be excluded.

Safeco reminds us that we have held that chapter 690 supplements our other statutes governing motor vehicle operation and insurance; see Gentile v. Altermatt, 169 Conn. 267, 299-304, 363 A.2d 1, appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1975). If we read these statutes to form a unified body of law, Safeco asks, “can there be any serious doubt that the legislature intended to prohibit someone who participates in the conversion of a vehicle from benefiting by that act?”

“To determine the collectively expressed legislative intent, we look first to the language of the statute itself. If that language is plain and unambiguous, we go no further.” Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991). Simply because the statutory language fails to address a claimed inequity does not make that language ambiguous. “This court cannot . . . by a tortured construction of the statutory and regulatory provisions, indirectly eliminate possible inequities in coverage, where the legislature has failed to do so directly.” Roy v. Centennial Ins. Co., 171 Conn. 463, 476, 370 A.2d 1011 (1976).

Ill

In its preliminary counterstatement of issues, Safeco included the following question: “Does public policy preclude a converter of a motor vehicle from obtaining uninsured motorist benefits from the vehicle’s owner’s insurance company?” It failed to brief this issue, and we consider it abandoned. Hayes v. Smith, 194 Conn. 52, 66 n.12, 480 A.2d 425 (1984); Milford Employees Assn. v. Milford, 179 Conn. 678, 681 n.4, 427 A.2d 859 (1980); Pastir v. Bielski, 174 Conn. 193, 384 A.2d 367 (1978); Martino v. Grace-New Haven Hospital, 146 Conn. 735, 736, 148 A.2d 259 (1959).

The judgment is vacated and case is remanded with direction to order the parties to proceed to arbitration.

In this opinion the other justices concurred.

       Throughout this opinion, we use the term “uninsured” to refer to both “uninsured” and “underinsured” motorist coverage.

       The trial court, Curran, J., subsequently granted Safeco’s motion to cite in as a party defendant American Mutual Insurance Company (American), which insured Gaudet’s parents. When American was declared insolvent, Gaudet, apparently without objection, withdrew the complaint as to American. See General Statutes (Rev. to 1987) § 38-175c, requiring uninsured motorist coverage to protect those otherwise entitled to recover from owners or operators of “insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages.”

       “[General Statutes (Rev. to 1987)] Sec. 38-331. converter of private passenger motor vehicle disqualified. A person who converts a private passenger motor vehicle is disqualified from basic or added reparations benefits as provided in this chapter, including benefits otherwise due him as a survivor, from any source other than an insurance policy under which the converter is a basic or added reparations insured, for injuries arising out of the maintenance or use of the converted vehicle. If the converter dies from the injuries his survivors are not entitled to basic or added reparations benefits from any source other than an insurance policy under which the converter is a basic reparations insured. For the purpose of this section, a person is not a converter if he uses the motor vehicle in the good faith belief that he is legally entitled to use it.”
      This section has been transferred to General Statutes (Rev. to 1991) § 38a-375. Because the legislature in 1990 reorganized and renumbered the motor vehicle insurance statutes, we refer to the 1987 revision of the statutes in all of our statutory references throughout this opinion.

       “[General Statutes (Rev. to 1987)] Sec. 38-175c. uninsured motorist coverage, (a) (1) Every such policy shall provide insurance, herein called uninsured motorist coverage, in accordance with such regulations, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom, provided each insurer licensed to write automobile liability insurance in this state shall provide such uninsured motorists coverage with limits requested by the named insured upon payment of the appropriate premium, but such insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily injury coverage of such policy issued to such named insured. No insurer shall be required to provide uninsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured, or (B) to any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured. Every such policy issued on or after October 1, 1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. With respect to any claim submitted to arbitration on or after October 1,1988, the arbitration proceeding shall be conducted by a single arbitrator if the amount in demand is forty thousand dollars or less or by a panel of three arbitrators if the amount in demand is more than forty thousand dollars.
      “(2) Notwithstanding any provision of this section to the contrary, every such policy issued or renewed on and after July 1,1984, shall provide uninsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless the insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by the insured.
      “(b) (1) An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage, exceed the limits of the insured’s uninsured motorist coverage.
      “For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subdivision (1) of this subsection.”

       “[General Statutes] Sec. 52-410. application for court order to proceed with arbitration, (a) A party to a written agreement for arbitration claiming the neglect or refusal of another to proceed with an arbitration thereunder may make application to the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, to any judge thereof, for an order directing the parties to proceed with the arbitration in compliance with their agreement. The application shall be by writ of summons and complaint, served in the manner provided by law.”

       In that case, we held that individual union members have standing as “parties” to enforce the arbitration provision of a collective bargaining agreement only if the agreement expressly gives them the right to seek arbitration of their grievances. If the agreement is silent, however, they are deemed to have ceded all such enforcement rights to their duly elected bargaining representative, which is, in effect, their enforcement agent. See Paranko v. State, 200 Conn. 51, 56, 509 A.2d 508 (1986).

       General Statutes § 52-410 was enacted in 1929 as a legislative response to judicial refusal to enforce arbitration clauses as violating public policy. See Paranko v. State, 200 Conn. 51, 54, 509 A.2d 508 (1986). Since 1929, the wheel has turned, and most courts favor arbitration as an expeditious method of settling certain types of disputes. See, e,g., Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 226, 107 S. Ct. 2332, 96 L. Ed. 2d 185 (1987). There is accordingly little reason to distinguish between a third party beneficiary’s right to enforce an arbitration clause of a contract and a third party beneficiary’s right to enforce any other clause of a contract.

       An arbitrator’s resolution of legal issues affecting insurance coverage is subject to de novo review in an action to confirm or vacate the arbitration award. See Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 657, 591 A.2d 101 (1991); Aetna Life & Casualty Co. v. Bulaong, 218 Conn. 51, 58, 588 A.2d 138 (1991).

       “[General Statutes (Rev. to 1987)] Sec. 38-326. residual liability insurance, (a) Under residual liability insurance the insurer is liable to pay, on behalf of the owner or other persons insured, sums which the owner or insured is legally obligated to pay as damages because of bodily injury and property damage arising out of the ownership, maintenance or use of a private passenger motor vehicle as a motor vehicle if the injury or damage occurs within the United States of America, its territories or possessions or Canada.
      “(b) Residual liability insurance shall afford coverage which satisfies the requirements of sections 38-175a to 38-175h, inclusive.”

       General Statutes (Rev. to 1987) § 38-327 provides in pertinent part: “MANDATORY security requirements, (a) (1) The owner of a private passenger motor vehicle required to be registered in this state shall provide and continuously maintain throughout the registration period security in accordance with this chapter for payment of basic reparations benefits and the liabilities covered under residual liability insurance . . . .”

       Because we hold that General Statutes (Rev. to 1987) § 38-331 restricts only a converter’s right to receive no-fault coverage from a policy other than his own, and does not affect his claim for uninsured motorist benefits, we need not address Gaudet’s claim that the trial court improperly imposed upon him the burden of proving that he was not a converter. We observe, however, that as a general rule affirmative defenses impose the burden of proof upon the party claiming the benefit of the defense, in this case, the insurer. Our holding in Pawlinski v. Allstate Ins. Co., 165 Conn. 1, 7, 327 A.2d 583 (1973), recognized that general rule, but made an exception for insurance cases in which the insurer, as required by our decision in Harty v. Eagle Indemnity Co., 108 Conn. 563, 565, 143 A. 847 (1928), affirmatively pleaded the claimant’s nonfulfillment of conditions precedent to coverage. Pawlinski v. Allstate Ins. Co., supra, 8-9.

       We note, moreover, notwithstanding counsel’s representations to the contrary, that the issue was never raised before the trial court and therefore is not properly before us in any event. Todd v. Glines, 217 Conn. 1, 3 n.2, 583 A.2d 1287 (1991); Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 567-68, 525 A.2d 954 (1987); see also Practice Book § 4185.