author: Norcott, J.

text:
    Patricia A. Krafick v. John H. Krafick
    (15043)
    Peters, C. J., and Borden, Berdon, Norcott and Palmer, Js.

      Argued April 18
    decision released August 8, 1995

      David S. Maclay, for the appellant (plaintiff).

      Daniel P. Weiner, with whom, on the brief, was Dan M. Schacht, for the appellee (defendant).

      Maureen M. Murphy, Ruth L. Pulda, Janet M. Deg-nan, Nancy Engberg, Misty Farris, Lisa Levy and Jo Seavey filed a brief for the Connecticut Women’s Education and Legal Fund et al. as amicus curiae.
   Norcott, J.

The principal issues in this certified appeal are whether vested pension benefits constitute property for the purposes of equitable distribution pursuant to General Statutes § 46b-81, and, if so, what methods are appropriate by which to value such benefits. The plaintiff, Patricia A. Krafick, appealed to the Appellate Court from the judgment of the trial court dissolving her thirty-three year marriage to the defendant, John H. Krafick, and distributing the parties’ marital assets. The Appellate Court affirmed the judgment of the trial court without opinion. Krafick v. Krafick, 34 Conn. App. 930, 643 A.2d 314 (1994). We granted certification and now reverse the judgment of the Appellate Court.

The relevant procedural and factual background is as follows. The parties were married on December 27, 1958. During the first twenty years of their marriage, the plaintiff worked in the home, caring for the parties’ seven children. She reentered the paid workforce in 1979 to work part-time in a bakery. In 1981, she obtained a full-time position with the Danbury welfare department as a case worker, where she subsequently was promoted to assistant director. The plaintiff’s 1992 earnings from this position were approximately $36,000.

The defendant worked as a teacher, first in the Dan-bury school system and subsequently in the Bedford, New York school system. He retired on February 1, 1994, shortly after the parties’ marriage was dissolved, after thirty-four years of service. In addition, the defendant worked as a full-time seasonal night dispatcher at a fuel company and held a number of other short-term summer jobs. The defendant’s 1992 total earnings were approximately $79,000.

After several years of growing dissatisfaction with their relationship, the parties separated in February, 1991. In August, 1991, the plaintiff instituted this marriage dissolution action seeking a decree of dissolution, alimony and the assignment of certain property from the defendant’s estate, including a 50 percent interest in the defendant’s pension by way of a qualified domestic relations order (QDRO).

The parties’ financial affidavits disclosed that, in addition to the family home, the parties owned a retail liquor business, a summer cottage in Old Saybrook and several “individual assets,” including personal vehicles and savings and checking accounts. The parties also claimed as “deferred assets” their respective retirement plans. The plaintiff had two individual retirement accounts with a total value of $8374 and a pension from the city of Danbury. The defendant had a 401k plan from his job as a dispatcher, valued at $30,500, an early retirement bonus in the amount of $16,200 and a pension from the New York state teachers’ retirement system, which would pay him 61 percent of the average of his three highest years of salary upon retirement, but which he claimed had “no present cash value.”

At trial, two documents addressing the nature and value of the defendant’s teacher’s pension were introduced as exhibits. The first was a letter from the teachers’ retirement system benefits department that was addressed to the defendant. The letter explained that the pension fund was entirely employer funded and that contributions were not allocated to individual members in the form of an annuity savings account. Instead, benefits were calculated pursuant to a preset formula, based on the member’s total years of service and the average of the member’s three highest years of salary. The pension vested at twenty years of credited service.

The plaintiff also introduced an expert appraisal of the defendant’s pension performed by Law Data, Inc. The appraisal stated that the defendant was fully vested in the pension and it projected, on the basis of his retiring on the eve of trial, that his annual pension income would be $36,500. On the basis of the defendant’s age and life expectancy, the appraisal further stated that the present value of the pension was $420,981. The defendant did not contest this appraisal nor did he introduce an alternative calculation of the pension’s present value or its projected yearly payout. Instead, he stressed that he could not liquidate the pension nor receive any payments from it until he retired. The defendant indicated at trial that he was eligible to retire and that he intended to do so in June, 1994.

On November 19,1992, the trial court rendered judgment dissolving the parties’ marriage on the ground of irretrievable breakdown. Pursuant to General Statutes §§ 46b-81 and 46b-82, however, the trial court made the following division of the parties’ property and award of support. The plaintiff was awarded the family home, most of the household furniture and furnishings, her interest in the Old Saybrook property, and the retail liquor business. Additionally, the defendant was ordered to pay to the plaintiff $300 per week in alimony, secured by a QDRO against his pension. The defendant received $30,000 “as and for a property distribution.” The parties retained their “respective bank accounts, securities, IRA plans and respective pension rights free and clear of any claims of the other, subject only to the [QDRO].” In addition, the parties were made equally responsible for payment of any existing debt, but were individually responsible for any other liabilities shown on the affidavits. Lastly, the parties were ordered to exchange life insurance policies, each worth approximately $50,000.

Thereafter, the plaintiff filed a motion to open and clarify the trial court’s judgment. General Statutes § 52-212 (a); see Practice Book §§ 329, 4051 and 4061. She contended that the trial court’s disposition of the marital assets was inequitable, in that, according to her calculations, it awarded the defendant 87 percent of the assets and the plaintiff only 13 percent. The plaintiff sought clarification of the basis of the court’s property distribution, particularly whether the trial court had found the plaintiff to be at fault. She also asked the trial court to address difficulties encountered in using a QDRO to reach the pension merely as security for alimony, rather than awarding her as a QDRO a percentage interest in the pension itself. See 29 U.S.C. § 1003 (b) (1) (Employee Retirement Income Security Act [ERISA] does not apply to governmental employee benefit plans).

At the hearings on the plaintiff’s motion, the trial court confirmed that it had intended to award the plaintiff no interest in the pension other than as security for the defendant’s alimony obligation. Despite the plaintiff’s repeated attempts, the trial court refused to state the basis of its property distribution or to articulate the value, if any, that it had ascribed to the defendant’s pension. The trial court acknowledged that the pension was an asset, but indicated that because it did not have a liquidated value, it was not amenable to reliable valuation and, therefore, was not considered alongside other assets in distributing the marital property. The Appellate Court, in a per curiam opinion, affirmed the judgment of the trial court.

On appeal to this court, the plaintiff claims that the trial court improperly failed to treat the pension as an asset, to assign it a value and to apportion it equitably. We agree.

I

The distribution of assets in a dissolution action is governed by § 46b-81, which provides in pertinent part that a trial court may “assign to either the husband or the wife all or any part of the estate of the other. ... In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.” (Emphasis added.) This approach to property division is commonly referred to as an “all-property” equitable distribution scheme. See 3 Family Law and Practice (A. Rutkin ed., 1995) § 37.01 [2] [a] [v], p. 37-19. It does not limit, either by timing or method of acquisition or by source of funds, the property subject to a trial court’s broad allocative power. A. Rutkin, E. Effron & K. Hogan, 7 Connecticut Practice Series: Family Law and Practice with Forms (1991) § 27.1, pp. 398-400.

There are three stages of analysis regarding the equitable distribution of each resource: first, whether the resource is property within § 46b-81 to be equitably distributed (classification); second, what is the appropriate method for determining the value of the property (valuation); and third, what is the most equitable distribution of the property between the parties (distribution). The present case concerns the proper treatment of the defendant’s vested pension under all three stages of our equitable distribution scheme.

A

We first consider whether pension benefits should be classified as property pursuant to § 46b-81. We conclude that they should.

We approach this question according to well established principles of statutory construction designed to further our “fundamental objective of ascertaining and giving effect to the apparent intent of the legislature.” State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986); Hayes v. Smith, 194 Conn. 52, 57, 480 A.2d 425 (1984). “In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Frillici v. Westport, 231 Conn. 418, 431-32, 650 A.2d 557 (1994); Fleming v. Garnett, 231 Conn. 77, 91-92, 646 A.2d 1308 (1994); State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994); Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764, 628 A.2d 1303 (1993).

The term “property” is not defined in § 46b-81 or elsewhere in the dissolution chapter. “ ‘Where a statute does not define a term, it is appropriate to look to the common understanding expressed in the law and in dictionaries.’ ” Southington v. State Board of Labor Relations, 210 Conn. 549, 561, 556 A.2d 166 (1989); see General Statutes § 1-1 (a); Carpenteri-Waddington, Inc. v. Commissioner of Revenue Services, 231 Conn. 355, 362, 650 A.2d 147 (1994); State v. Indrisano, 228 Conn. 795, 809, 640 A.2d 986 (1994); State v. Jimenez, 228 Conn. 335, 341, 636 A.2d 782 (1994).

Black’s Law Dictionary (6th Ed. 1990) defines “property” as the term “commonly used to denote everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate. It extends to every species of valuable right and interest, and includes real and personal property, easements, franchises, and incorporeal hereditaments.” (Emphasis added.)

“Pension benefits represent a form of deferred compensation for services rendered. In re Marriage of Brown, [15 Cal. 3d 838, 845, 544 P.2d 561, 126 Cal. Rptr. 633 (1976)].” Thompson v. Thompson, 183 Conn. 96, 100, 438 A.2d 839 (1981). They do not constitute mere gratuities; see Pineman v. Oechslin, 195 Conn. 405, 413, 488 A.2d 803 (1985); as the interest in receiving such benefits is contractual in nature. “Whether the plan is contributory or noncontributory, the employee receives a lesser present compensation plus the contractual right to the future benefits payable under the pension plan. . . . [Vested pension benefits] are contract rights of value . . . .” Majauskas v. Majauskas, 61 N.Y.2d 481, 491, 463 N.E.2d 15, 474 N.Y.S.2d 699 (1984). As contractual rights, pension benefits are “a type of intangible property,” and, as such, are encompassed in Black’s definition of “property.” (Emphasis added.) 3 E. Farnsworth, Contracts (1990) § 11.1.

Nothing in the legislative history of § 46b-81 indicates an intent to narrow the plain meaning of “property” from its ordinarily broad and comprehensive scope. Indeed, the term “property” has been broadly defined elsewhere in the General Statutes. See General Statutes § 52-278 (for purposes of attachment, property is defined as “any present or future interest in real or personal property, goods, chattels or choses in action, whether such is vested or contingent.” (Emphasis added.)

Interpreting the term property broadly is also consistent with the purpose of equitable distribution statutes generally. It is widely recognized that the primary aim of property distribution is to recognize that marriage is, among other things, “a shared enterprise or joint undertaking in the nature of a partnership to which both spouses contribute—directly and indirectly, financially and nonfinancially—the fruits of which are distributable at divorce.” (Emphasis added.) J. Gregory, The Law of Equitable Distribution (1989) § 1.03, pp. 1-6; see O’Neill v. O’Neill, 13 Conn. App. 300, 310-11, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988).

Pension benefits are widely recognized as among the most valuable assets that parties have when a marriage ends. In re Marriage of Brown, supra, 15 Cal. 3d 846 (“[a]s the date of vesting and retirement approaches, the value of the pension right grows until it often represents the most important asset of the marital community”); Deering v. Deering, 292 Md. 115, 122-23, 437 A.2d 883 (1981) (“[I]t is significant that over the past several years, pension benefits have become an increasingly important part of an employee’s compensation package which he or she brings to a marriage unit. Moreover, in a situation where economic circumstances prevent a husband and wife from saving or investing a portion of the wage earner’s income, the pension right swells in importance as retirement or vesting approaches, and may well represent the most valuable asset accumulated by either of the marriage partners.”); see also In re Marriage of Grubb, 745 P.2d 661, 664 (Colo. 1987); Barbour v. Barbour, 464 A.2d 915, 920 (D.C. 1983). Pension benefits are an “economic resource acquired with the fruits of the wage earner spouse’s labors which would otherwise have been utilized by the parties during the marriage to purchase other deferred income assets.” Deering v. Deering, supra, 124. “Both the nonemployed spouse and his or her wage earning marital partner have the same retirement goals and expectancies regarding the pension benefits as they would if they provided for their later years by using wage income to purchase other investments.” Id., 125. It would be unfair and contrary to the purpose of the statute to “strip the nonemployee spouse of the value of the retirement asset by precluding [the trial court] from evaluating its worth prior to adjudicating the property rights of the estranged marriage partners.” Id. Thus, it would not make sense, where the legislature has acted to expand the range of resources subject to the trial court’s power of division, to adopt a narrow construction of the operative term “property.”

Classifying vested pension benefits as property does not run afoul of the limitation, recognized in the context of inheritance and trust interests, that § 46b-81 applies only to presently existing property interests, not “mere expectancies.” See Bartlett v. Bartlett, 220 Conn. 372, 380-81, 599 A.2d 14 (1991); Rubin v. Rubin, 204 Conn. 224, 236-39, 527 A.2d 1184 (1987). An expectancy is only “the bare hope of succession to the property of another, such as may be entertained by an heir apparent.” Krause v. Krause, 174 Conn. 361, 365, 387 A.2d 548 (1978). As we have stated, “ ‘[sjuch a hope is inchoate. It has no attribute of property, and the interest to which it relates is at the time nonexistent and may never exist.’ ” (Emphasis added.) Id. “The expectancy may never be realized because of diminution of the donor’s wealth or a change in the planned disposition of his property.” Rubin v. Rubin, supra, 235. “The term expectancy describes the interest of a person who merely foresees that he might receive a future beneficence .... [Tjhe defining characteristic of an expectancy is that its holder has no enforceable right to his beneficence.” (Citations omitted; emphasis in original.) In re Marriage of Brown, supra, 15 Cal. 3d 844-45. As we have stated, vested pension benefits represent an employee’s right to receive payment in the future, subject ordinarily to his or her living until the age of retirement. “The fact that a contractual right is contingent upon future events does not degrade that right to an expectancy.” Id., 846 n.8.

Thus, we conclude that “property” as used in § 46b-81, includes the right, contractual in nature, to receive vested pension benefits in the future.

B

We next must determine how vested pension benefits should be valued and distributed. The task of properly valuing pension benefits is complex because such benefits may be defeasible by the death of the employee spouse before retirement and the amount of benefits ultimately received depends upon a number of factors that remain uncertain until actual retirement. Therefore, a trial court, in valuing the parties’ assets upon dissolution, has considerable discretion in selecting and applying an appropriate valuation method. “In assessing the value of . . . property . . . the trier arrives at his own conclusions by weighing the opinions of the appraisers, the claims of the parties, and his own general knowledge of the elements going to establish value, and then employs the most appropriate method of determining valuation. . . . The trial court has the right to accept so much of the testimony of the experts and the recognized appraisal methods which they employed as he finds applicable; his determination is reviewable only if he misapplies, overlooks, or gives a wrong or improper effect to any test or consideration which it was his duty to regard.” (Citation omitted; internal quotation marks omitted.) Turgeon v. Turgeon, 190 Conn. 269, 274, 460 A.2d 1260 (1983); see also Siracusa v. Siracusa, 30 Conn. App. 560, 568-71, 621 A.2d 309 (1993).

There are three widely approved methods of valuing and distributing pension benefits. The first, called the “present value” or “offset” method, “requires the court to determine the present value of the pension benefits, decide the portion to which the nonemployee spouse is entitled, and award other property to the nonemployee spouse as an offset to the pension benefits to which he or she is otherwise entitled.” 3 Family Law and Practice, supra, § 36.13 [3], p. 36-72; see In re Marriage of Brown, supra, 15 Cal. 3d 848 (recognizing offset method); In re Marriage of Grubb, supra, 745 P.2d 666 (same); Robert C.S. v. Barbara J.S., 434 A.2d 383, 387-88 (Del. 1981) (same); Kikkert v. Kikkert, 177 N.J. Super. 471, 477-78, 427 A.2d 76, aff'd, 88 N.J. 4, 438 A.2d 317 (1981) (same); McDermott v. McDermott, 150 Vt. 258, 259-60, 552 A.2d 786 (1989) (same); see also 3 Family Law and Practice, supra, § 37.11 [2] [a], pp. 37-161 through 37-163, and § 38.04 [2] [f], pp. 38-39 through 38-42. For defined benefit pensions, present value represents “ ‘the sum which a spouse will take at the present time in return for giving up the right to receive an unknown number of monthly checks in the future.’ ” 3 Family Law and Practice, supra, § 36.13 [3] [a], p. 36-73.

Calculating a pension’s present value depends on several factors, including the employee spouse’s life expectancy, the proper interest rate for discount and the date of retirement. See id. As we observed in Thompson v. Thompson, supra, 183 Conn. 101, “these contingencies are susceptible to reasonably accurate quantification . . . by using generally accepted actuarial principles.” (Citation omitted.) See also A. Rutkin, E. Effron & K. Hogan, supra, § 27.20, pp. 423-25 (discussing calculation of present value of various types of deferred compensation plans). Once the court has determined the present value of the benefits at issue, it may, in light of relevant equitable considerations, award those benefits to the employee spouse and/or may offset the nonemployee’s equitable share in the pension benefits with an award of other assets. See Majauskas v. Majauskas, supra, 61 N.Y.2d 485-86.

The offset method has the advantage of effecting a “clean break” between the parties. See Kikkert v. Kikkert, supra, 177 N.J. Super. 477-78 (“Although fixing present value under such circumstances may be difficult and inexact, nevertheless immediate final resolution of the method of distribution is to be encouraged, preferably by voluntary agreement whenever possible. Long term and deferred sharing of financial interests are obviously too susceptible to continued strife and hostility, circumstances which our courts traditionally strive to avoid to the greatest extent possible.”); 3 Family Law and Practice, supra, § 36.13 [3] [a], p. 36-73. It also avoids extended supervision and enforcement by the courts. See Hunsinger v. Hunsinger, 381 Pa. Super. 453, 460-61, 554 A.2d 89 (1989).

The drawback to the offset method is that it places the entire risk of forfeiture before maturity on the employee spouse. Further, this method is not feasible when there are insufficient other assets by which to offset the value of the pension; see 2 Valuation and Distribution of Marital Property (J. McCahey ed., 1991) § 23.02 [4], pp. 23-21 through 23-25; 3 Family Law and Practice, supra, § 36.13 [3] [a], pp. 36-73 through 36-77; or “where no present value can be established [by expert testimony] and the parties are unable to reach agreement” as to the value of the pension. Kikkert v. Kikkert, supra, 177 N.J. Super. 478. If there are sufficient other assets, however, several courts have favored this approach. See, e.g., Johnson v. Johnson, 131 Ariz. 38, 42, 638 P.2d 705, modified and affirmed, 131 Ariz. 47, 638 P.2d 714 (1981); Taylor v. Taylor, 329 N.W.2d 795, 798-99 (Minn. 1983); Kuchta v. Kuchta, 636 S.W.2d 663, 666 (Mo. 1982); Kikkert v. Kikkert, supra, 477-78; Endy v. Endy, 412 Pa. Super. 398, 404-405, 603 A.2d 641 (1992); Holbrook v. Holbrook, 103 Wis. 2d 327, 341-43, 309 N.W.2d 343 (1981).

The second and third recognized methods for valuing and distributing pensions involve delaying distribution until the pension matures. See Fondi v. Fondi, 802 P.2d 1264, 1266 (Nev. 1990); Hodgins v. Hodgins, 126 N.H. 711, 715, 497 A.2d 1187 (1985). Under the “present division” method, the trial court determines at the time of trial the percentage share of the pension benefits to which the nonemployee spouse is entitled. The court may then, through a QDRO for pensions covered by ERISA or some equivalent if the nonERISA plan permits, presently divide or assign the pension benefits between the spouses. See 3 Family Law and Practice, supra, § 38.04 [2], p. 38-42. In other words, the court will declare that, upon maturity, a fixed percentage of the pension be distributed to each spouse. In re Marriage of Brown, supra, 15 Cal. 3d 838; see Workman v. Workman, 106 N.C. App. 562, 568-69, 418 S.E.2d 269 (1992).

Alternatively, under the “reserved jurisdiction” method, the trial court reserves jurisdiction to distribute the pension until benefits have matured. Once matured, the trial court will determine the proper share to which each party is entitled and divide the benefits accordingly. McDermott v. McDermott, supra, 150 Vt. 259-60 (such a method allows a court “to base its distribution upon actual figures [as to what benefits are being paid] rather than assumptions as to retirement age and other variables”); 2 Valuation and Distribution of Marital Property, supra, § 23.02 [4], pp. 23-21 through 23-25; 3 Family Law and Practice, supra, § 37.11 [2] [b], pp. 37-163 through 37-164; see also Whitfield v. Whitfield, 222 N.J. Super. 36,48, 535 A.2d 986 (1987) (recognizing but disapproving reserved jurisdiction approach to pension valuation and distribution).

Both the present division and the reserved jurisdiction methods have the advantage of imposing on the parties equally the risk of forfeiture, but have the cost of prolonging the parties’ entanglement with each other. 2 Valuation and Distribution of Marital Property, supra, § 23.02 [4], pp. 23-21 through 23-25; see In re Marriage of Brown, supra, 15 Cal. 3d 838; Robert C.S. v. Barbara J.S., supra, 434 A.2d 388; In re Marriage of Curfman, 446 N.W.2d 88 (Iowa 1989). These methods are favored when there are insufficient assets to offset the award of the pension to the employee spouse alone or when the evidence is inadequate to establish present value. Laing v. Laing, 741 P.2d 649, 657-58 (Alaska 1987).

These methods are not exclusive. A trial court retains discretion to select any other method to take account of the value of a pension asset “that might better address the needs and interests of the parties.” In re Marriage of Grubb, supra, 745 P.2d 666. The touchstone of valuation, as well as the ultimate distribution of pension benefits, is the court’s “power to act equitably.” Pasquariello v. Pasquariello, 168 Conn. 579, 585, 362 A.2d 835 (1975). We note that, although not expressly required by statute, a trial court, when utilizing a method to ascertain the value of a pension, should reach that value on the record. “Casting the judgment in specific amounts will make the result more comprehensible for the litigants and will facilitate appellate review as often as such review may become necessary.” Grishman v. Grishman, 407 A.2d 9, 12 (Me. 1979).

II

The plaintiff argues that although the trial court acknowledged that the defendant’s pension was “an asset of the marriage,” the trial court improperly valued the pension by assigning to it no value in the distribution of property. The defendant argues that a trial court may assign a pension no value if the pension is taken into account as a source of alimony. We agree with the plaintiff.

Our scope of review “of a trial court’s exercise of its broad discretion in domestic relations cases is limited to the questions of whether the [trial] court correctly applied the law and could reasonably have concluded as it did.” (Internal quotation marks omitted.) Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); see Rostain v. Rostain, 213 Conn. 686, 693, 569 A.2d 1126 (1990). “In determining whether the trial court could reasonably conclude as it did on the evidence before it, every reasonable presumption should be given in favor of the correctness of its action. Gallo v. Gallo, 184 Conn. 36, 44, 440 A.2d 782 (1981); Pasquariello v. Pasquariello, [supra, 168 Conn. 584].” Leo v. Leo, supra, 4-5.

Our review of the record and the trial court’s financial awards, although hampered by the lack of findings as to the value of any of the parties’ property, confirms that the trial court failed to consider the defendant’s pension interest as an asset because it did not have a “cash-in” or liquid value. In response to the plaintiff’s requests for an express valuation of the pension asset, the trial court repeatedly emphasized that present value was unacceptable in light of the nonliquid nature of the asset. The court offered no substitute valuation method. Although, as we have stated, the trial court possesses considerable discretion in selecting a method by which to take account of the value of vested pension benefits in making a property distribution pursuant to § 46b-81, or an award of alimony pursuant to § 46b-82; see footnote 25; it constitutes an abuse of that discretion to reject present value or any value for vested pension benefits merely because the asset is non-liquid, thereby effectively removing this property interest from the scales in determining an equitable division of all of the property before the court. See Cole v. Cole, 561 A.2d 1018, 1020-21 (Me. 1989). To hold otherwise would defeat the purpose of the equitable distribution statute, by permitting the trial court to treat such benefits as a mere expectancy rather than property. “The issues involving financial orders are entirely interwoven. The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.” (Internal quotation marks omitted.) Sunbury v. Sunbury, 210 Conn. 170, 175, 553 A.2d 612 (1989).

This case, therefore, must be remanded to the trial court to assign an appropriate valuation to the pension benefits in light of the principles discussed in this opinion, and thereafter reconsider its financial orders, as necessary, so as to effectuate an appropriate distribution of the marital assets and to render appropriate orders of financial support.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court for a new hearing and determination regarding the financial aspects of the judgment of dissolution.

In this opinion the other justices concurred.

       General Statutes § 46b-81 provides: “assignment of property and transfer of title, (a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the superior court may assign to either the husband or the wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.
      “(b) A conveyance made pursuant to the decree shall vest title in the purchaser, and shall bind all persons entitled to life estates and remainder interests in the same manner as a sale ordered by the court pursuant to the provisions of section 52-500. When the decree is recorded on the land records in the town where the real property is situated, it shall effect the transfer of the title of such real property as if it were a deed of the party or parties.
      “(c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       The plaintiff’s initial appeal to the Appellate Court was dismissed for lack of final judgment. Thereafter, the plaintiff moved in the trial court for a final judgment, which was subsequently rendered.

       We granted certification limited to the following issues: (1) “In a dissolution action, is a vested defined benefit pension a part of the property that must be equitably distributed?” and (2) “If the first issue is answered ‘yes,’ what is the proper method for valuing the pension?” Krafick v. Krafick, 231 Conn. 920, 648 A.2d 164 (1994).

       A QDRO is the exclusive means by which to assign to a nonemployee spouse all or any portion of pension benefits provided by a plan that is governed by the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. See 29 U.S.C. § 1056 (d) (3) (b) for the requirements of a valid QDRO. Although the procedures set forth in the United States Code for a QDRO do not apply to a governmental pension plan such as the state teachers’ plan from which the defendant derives his pension; see 29 U.S.C. § 1003 (b); the amicus represents that the New York state teachers’ retirement system will honor court orders, similar to a QDRO, that direct the payment of a portion of a retiree’s retirement allowance to a spouse.

       An appraiser for the plaintiff testified that the value of the home, as of the date of trial, was approximately $175,000. The home was encumbered by a $100,000 mortgage loan, which had been taken to purchase the retail liquor store owned by the parties.

       This business was purchased and stocked for approximately $87,000 with the proceeds of the $100,000 mortgage against the home. The parties disputed the value and profitability of the business. The plaintiff estimated the value of the business to be between $40,000 and $45,000, based on her knowledge of similar businesses in the area having been listed in that range. The defendant estimated the value of the business to be approximately $87,000. The parties’ income tax return showed that the business had gross receipts in excess of $200,000 in 1990, but that overall, the business operated at a loss. The plaintiff indicated at trial that the proceeds from the business paid a large part of the mortgage payments on the family home.

       The plaintiff was part owner, with her brother, of the summer cottage, which had an estimated fair market value of $135,000. The defendant disputed the size of the plaintiff’s interest in the property by producing town records, showing that the plaintiff owned two thirds of the property. The plaintiff and her brother testified that they were each one-half owners. The defendant conceded at trial that he had understood his wife to possess a one-half interest in the cottage.

       The plaintiff owned two automobiles with a total value of $7325, a savings account in the amount of $6377, a Christmas club savings account in the amount of $200, two checking accounts in the amounts of $629 and $106, and shares of stock valued at $360. The defendant listed as individual assets a truck valued at $3000 and a boat valued at $13,000, against which there was an outstanding loan in the amount of $11,000.

       A letter from the director of finance of the city of Danbury stated that “the value of your pension as of June 30,1992, at age 65 would be $511.00 per month. If you were to retire early (June 30,1992), your estimated pension would be $222.00 per month.”

       The defendant’s financial affidavit listed the following “deferred assets/savings”: a 401k retirement plan with the fuel company valued at $33,531; an early retirement bonus valued at $16,200; miscellaneous IRAs worth $5000 total; a savings account with a $1100 balance; and his pension. The defendant requested that he be awarded exclusive interest in these assets “in the approximate amount of $55,831.” Thus, it is clear that the defendant placed no value on the pension for purposes of property distribution.

       The defendant explained that the percentage he would receive, upon retirement, of the average of his three highest years of salary would be the sum of 1 percent for each year he taught in Connecticut and 2 percent for each year he taught in New York.

       By “vested” we refer to pension interests “in which an employee has an irrevocable . . . right, in the future, to receive his or her account balance (under a defined contribution plan), or his or her accrued benefit (under a defined benefit plan), regardless of whether the employment relationship continues.” 3 Family Law and Practice (A. Rutkin ed., 1995) § 36.13 [2], p. 36-71; see id., § 37.11 [1] [b], pp. 37-157 through 37-159; see also 2 Valuation and Distribution of Marital Property (J. McCahey ed., 1991) § 23.02 [2] [a], p. 23-8; see Thompson v. Thompson, 183 Conn. 96, 100 n.3, 438 A.2d 839 (1981) (“[v]ested benefits . . . refer to those accrued benefits to which the employee has a nonforfeitable right to receive at retirement age whether or not he is in the service of the employer at that time”). Prior to vesting, an employee’s accrued benefits may be forfeited by termination of employment. Once the employee with a vested pension interest reaches the age of retirement and elects to retire, his rights are said to be vested and matured. See 3 Family Law and Practice, supra, § 36.13 [2], p. 36-71, and § 37.11 [1] [b], p. 37-159; see also Majauskas v. Majauskas, 61 N.Y.2d 481, 491, 463 N.E.2d 15, 474 N.Y.S.2d 699 (1984).

       The trial court made no findings in its memorandum of decision or elsewhere in the record as to the value it accepted for any of the parties’ various assets, the total value of all of the assets or the total distributed to each party, or as to any percentage of the assets it intended to award to each party.

       General Statutes § 46b-82 provides: “alimony. At the time of entering the decree, the superior court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employ-ability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”

       Under the court’s order, in the event that the defendant failed to pay the plaintiff’s alimony, his pension payments would be garnished in the amount of $300 per month.

       In his brief to this court, the defendant argued that the plaintiff had waived review of the pension valuation issue because she had not raised it with sufficient specificity in her motion to open and clarify. Our review of the record, however, indicates that the plaintiff’s motion satisfactorily raised the pension valuation issue before the trial court.

       According to the plaintiff’s schedule of assets attached to the motion, when present value of the pension was added to the value of the assets received by the defendant, she calculated that he received $538,293 in property and that she received assets worth only $79,059.

       For example, the following exchange occurred during one of the hearings: “[Plaintiff’s counsel]: Your Honor, two things occurred to me as being inherent premises in the court’s order regarding this issue Lof survivor-ship benefits]. One is, that the court perceives the pension as an asset that does not have a value. Or certainly does not have a value that is calculable at this point in time.
      “The Court: Well, the pension does not have a value which a person can withdraw against.”
      Later the trial court stated: “I’ve heard both positions concerning—one says it’s 70/30 the other says it’s 13/87. The court is aware of the fact that has been from the first day that there is a pension to which some $400,000 was ascribed as its current value but—the court has heard that, but admittedly no one can say give me one dollar let alone $400,000. And the court took that into consideration that it wasn’t a distribution to Mr. Krafick where he can say, great, she’s got that and I’ve got $400,000 and I’m going to the New York state authorities and saying $400,000 please.”

       At this point, it is helpful to define the terminology we employ. Pension plans, although existing in many forms, are often grouped into two broad categories: defined contribution plans and defined benefit plans. What distinguishes them is the source and allocation of funding and the way in which benefits are calculated. 3 A. Rutkin, supra, § 36.13 [1], pp. 36-69 through 36-71; see also W. Troyan, E. Poll, W. Cantwell & W. Weston, 3 Valuation and Distribution of Marital Property (1991) §§ 45.08 through 45.10, pp. 45-26 through 45-32. Generally, “defined contribution plan” refers to a plan under which “contributions are made at a fixed rate, as defined in the plan, but the ultimate benefits are unknown. The important features of this type of plan are the maintenance of individual accounts and use of a plan formula to calculate allocations to the accounts.” 3 Family Law and Practice, supra, § 36.13 [1], p. 36-70. In contrast, a “defined benefit plan” refers to a plan which is “funded to provide a definitely determinable benefit to the employee upon retirement. Contributions, therefore, are made in an amount that actuaries calculate will be required to yield the promised benefit, that is, a fixed amount per month upon retirement for the remainder of the employee’s life. The plan trustees are not required to keep an individual account for each employee.” Id. Plans may, of course, combine elements of both of these categories.

       We reject the defendant’s assertion that Thompson v. Thompson, supra, 183 Conn. 96, settled either the status of vested pension benefits under § 46b-81 or the proper valuation of such benefits. In Thompson, we addressed nonvested pension benefits and concluded only that such interests were not too speculative to be taken into account in some fashion by the trial court in crafting its financial orders in a dissolution action. Id., 100-101.

       Moreover, we are persuaded that pension benefits are sufficiently susceptible to valuation to distinguish them from the type of potential interest in money that might be received under a will whose validity is being contested. Cf. Eslami v. Eslami, 218 Conn. 801, 591 A.2d 411 (1991). In Eslami, although the trial court had failed to consider the value of the wife’s vested interest in her father’s estate, we affirmed the judgment of the trial court. We noted that, even though the wife’s interest had been “vested” because her father had died, it was impossible to determine whether that interest had any value whatsoever. If the will was declared invalid, the wife would have been entitled only to an intestate share of the estate which might not have exceeded her liability for attorney’s fees expended in the will contest. See id., 806 n.4. We therefore affirmed the judgment of the trial court, noting that “[ajlthough the interest involved here had vested in the wife at the time of trial, the court could reasonably have concluded that uncertainty as to the amount she would eventually receive from her father’s estate militated against consideration of that interest for the purpose of the financial awards.” Id., 807. In this case, the right to receive such benefits is not nearly so uncertain, as some benefits will be paid unless the defendant dies before retirement. Moreover, the problem of estimating the value of such benefits is more properly dealt with not as a problem of classification, but as a problem of valuation and distribution. See part I B of this opinion.

       To the extent that Askinazi v. Askinazi, 34 Conn. App. 328, 641 A.2d 413 (1994), may be read to permit various pension related interests to be considered either as property or as a source of alimony, we reject that conclusion. Section 46b-81 requires a trial court to make an equitable distribution of the parties’ property; to go about doing so sensibly, a court must determine at the outset which of the parties’ resources are subject to division and assignment under that provision. Although § 46b-82 authorizes the trial court to award alimony “in addition to or in lieu of [a distribution of property] pursuant to section 46b-81,” (emphasis added), the trial court may decide to exchange alimony for property only after determining the value of the property in the estate.
      This classification is significant for two reasons. First, property, even if not so characterized by the trial court, will ultimately be awarded to one of the parties; the statutory duty to distribute property equitably contemplates that the trial court effect such awards consciously rather than by default. Second, although it may be permissible in the distribution phase to exchange some form of alimony for a property award when equitable to do so; see part I B of this opinion; it must be remembered that these awards are of different quality and consequence for the recipient spouse. An award of property is final; the party who receives property pursuant to § 46b-81 owns it in his or her own right and controls it. Periodic alimony, on the other hand, is conditional, subject to modification or elimination. See General Statutes § 46b-86.

       Our conclusion that vested pension benefits, as contract rights to payment in the future, constitute property subject to distribution on divorce is in accord with the overwhelming majority of jurisdictions—including common law, equitable and community property—reaching the issue. See, e.g., In re Marriage of Brown, supra, 15 Cal. 3d 838; In re Marriage of Grubb, supra, 745 P.2d 665; Barbour v. Barbour, supra, 464 A.2d 915; Majauskas v. Majauskas, supra, 61 N.Y.2d 481; Stevenson v. Stevenson, 511 A.2d 961, 965 (R.I. 1986); see also annot., 94 A.L.R.3d 176, 180 (“[wjhether or not they regard pensions or retirement pay as property which is subject to award to or division between spouses in settlement of their property rights, virtually all courts do recognize or assume, as an initial matter, that these benefits do constitute ‘property’ ”)
      Although we do not reach non vested pension benefits here, we note that the same reasoning has been applied to find that such benefits also, as an initial matter, constitute property. See Laing v. Laing, 741 P.2d 649 (Alaska 1987); Johnson v. Johnson, 131 Ariz. 38, 638 P.2d 705, modified and affirmed, 131 Ariz. 47, 638 P.2d 714 (1981); In re Marriage of Brown, supra, 15 Cal. 3d 838; Robert C.S. v. Barbara J.S., 434 A.2d 383 (Del. 1981); Deering v. Deering, supra, 292 Md. 115 (rejecting as dispositive on issue of status as property the concept of vesting); Whitfield v. Whitfield, 222 N.J. Super. 36, 535 A.2d 996 (1987).

       For guidance on establishing the present value of an employee spouse’s interest in a vested defined contribution plan or a combination plan, see Bloomer v. Bloomer, 84 Wis. 2d 124, 267 N.W.2d 235 (1978).

       We note, with regard to the “present value/offset” method, that our statutory scheme authorizes the trial court to order the payment of alimony “in addition to or in lieu of an award pursuant to section 46b-81,” and directs that, “[i]n determining whether alimony shall be awarded, and the duration and amount of the award, the court . . . shall consider . . . the award, if any, which the court may make pursuant to section 46b-81.” General Statutes § 46b-82. Thus, where it is equitable to do so, the trial court may offset the allocation to one spouse of the entire value of the pension with alimony instead of or in addition to assets. It must be kept in mind, however, that awards of property and of alimony are different in quality and consequence for the recipient. Periodic alimony, unlike a property award, is subject to modification on a number of grounds. See General Statutes § 46b-86. As the amicus points out, to award alimony instead of assets, may leave the recipient spouse, often a woman, dependent on the employee spouse, without sufficient resources, and may not adequately or fairly recognize the nonemployed spouse’s contribution to and expectations of security from the pension benefits. See O’Neill v. O’Neill, supra, 13 Conn. App. 300; cf. Diffenderfer v. Diffenderfer, 491 So. 2d 265, 268 (Fla. 1986); see also 3 Family Law and Practice, supra, § 37.01 [2] [a], pp. 37-12 through 37-13 (“Modem equitable distribution systems also facilitate the goal of affording a means of support for an economically dependent spouse which is not subject to the vagaries of periodic alimony and does not require continued contact between the divorced spouses. . . . [Ejquitable distribution statutes also promote the finality of the parties’ actual separation and parting. The goal of leaving each party in a self-sufficient state so as to preclude the need for future dealings between the parties or return trips to the courthouse, is advanced by use of property distribution instead of support payments.”); H. Foster & D. Freed, “Spousal Rights in Retirement and Pension Benefits,” 16 J. Fam. L. 187,188-91 (1977-78). We need not decide in this case whether, in light of these concerns, alimony properly could be substituted for an award of property to this plaintiff.

       We reject the defendant’s contention that to consider vested benefits for purposes of equitable distribution and also, as allocated, as a source of alimony constitutes impermissible “double dipping.” Our alimony statute expressly provides that “[i]n determining whether alimony shall be awarded, and the duration and amount of the award, the court . . . shall consider . . . the award, if any, which the court may make pursuant to section 46b-81.” General Statutes § 46b-82. Relying on the pension benefits allocated to the employee spouse under § 46b-81 as a source of alimony would be improper only to the extent that any portion of the pension assigned to the nonemployee spouse was counted in determining the employee spouse’s resources for purposes of alimony. See Majauskas v. Majauskas, supra, 61 N.Y.2d 492-93.

       For example, at the February 9, 1992 hearing on the same motion, the trial court noted:
      “The Court: No, I don’t think the court said the pension wasn’t an asset. The court said that Mr. Krafick could not go to the New York state pension people and say—the pension which is generating about—which will generate—What was it, $36,000 a year? . . .
      “The pension, which will generate $36,000 a year, is not available for Mr. Krafick’s withdrawal of any principal. And so that, although it is an asset

        of the marriage and of the relationship, it doesn't allow withdrawal by any party. That the only thing that the husband or the wife who is going to get it, get some income from that asset, can get—it's income. And that was a factor involved, that although it had an actuarial value of $400,000 or something of that nature, that in truth there wasn’t ten cents available for the use of the parties out of principal.” (Emphasis added.)


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Florence A. Ciarelli v. Commercial Union Insurance Companies
    (15165)
    Borden, Norcott, Katz and Palmer, Js.

    Argued June 1
    decision released August 8, 1995

      Lori Welch-Rubin, with whom was Douglas J. Apicella, for the appellant (plaintiff).

      Frederick L. Murolo, with whom, on the brief, was Mark T. Gould, for the appellee (defendant).

       After oral argument in this case, Justice Callahan recused himself and the parties agreed to have this appeal decided by a panel of this court consisting of the four remaining Justices who had heard the appeal.

   Borden, J.

The dispositive issue in this appeal is whether, in the case of an accident involving only one tortfeasor vehicle, an injured party is required to exhaust the liability limits of the insurance policies of both the owner and the operator of that vehicle in order to trigger underinsured motorist benefits. The plaintiff, Florence A. Ciarelli, appeals from the judgment of the trial court confirming an arbitration panel’s denial of underinsured motorist benefits that the plaintiff sought pursuant to her insurance policy with the defendant, the Commercial Union Insurance Companies. The trial court concluded that the plaintiff had failed to trigger her underinsured motorist coverage because she had failed to exhaust the limit of an insurance policy covering the operator of the underinsured motor vehicle. We affirm the judgment of the trial court.

The facts underlying the plaintiff’s claim are as follows. A vehicle (Cifarelli vehicle) owned by Ralph Cifarelli (owner) and operated by Richard Rodriguez (operator) crossed the center line of Foxon Boulevard in New Haven and struck the vehicle being operated by the plaintiff. The operator was cited for failure to operate his motor vehicle in the proper lane, and liability was stipulated. The Cifarelli vehicle was insured by Patriot General Insurance Company (Patriot General) under a policy providing liability coverage of $20,000 per person, $40,000 per accident. The plaintiff settled her claim with Patriot General for its per person limit of $20,000, thereby exhausting that policy. The plaintiff thereafter executed a general release of both the owner and the operator of the Cifarelli vehicle. At the time of the accident, the operator was insured for liability coverage through ITT Hartford (ITT). The plaintiff did not attempt to collect against this policy.

The plaintiff subsequently filed a claim for underinsured motorist benefits against her own insurance carrier, the defendant. A three person arbitration panel, with one arbitrator dissenting, determined that, pursuant to Continental Ins. Co. v. Cebe-Habersky, 214 Conn. 209, 571 A.2d 104 (1990), the plaintiff was not entitled to benefits because she had failed to exhaust the limits of one of the insurance policies applicable to the underinsured vehicle, namely, the ITT policy. The dissenting arbitrator argued that, pursuant to General Accident Ins. Co. v. Wheeler, 221 Conn. 206, 603 A.2d 385 (1992), the plaintiff was required to exhaust the insurance coverage of only one tortfeasor. He argued that the vehicle owner was a tortfeasor, that the plaintiff had exhausted the policy limit of the vehicle owner’s insurance, and, therefore, that the plaintiff was not required to exhaust the insurance coverage of the vehicle operator.

The plaintiff applied to the trial court to vacate the award, echoing the assertions of the dissenting arbitrator. The trial court concluded that the vehicle owner was not a tortfeasor within the meaning of Wheeler, denied the application to vacate and confirmed the award of the arbitrators. This appeal followed.

The plaintiff claims that: (1) General Accident Ins. Co. v. Wheeler, supra, 221 Conn. 206, requires the exhaustion of the insurance policy of only one tortfeasor, and in this case the exhaustion of the owner’s liability insurance was sufficient to trigger underinsured motorist coverage; (2) the language of the plaintiff’s underinsured motorist policy required the exhaustion of the owner’s or the operator’s insurance policy, but not both; and (3) the operator’s insurance policy was not applicable because his vehicle had no connection to the accident that caused the plaintiff’s loss. We conclude that the trial court correctly determined that the plaintiff had not triggered her underinsured motorist coverage.

The plaintiff first claims that the trial court improperly determined that she had failed to exhaust the liability coverage applicable to the Cifarelli vehicle. The trial court determined that General Statutes § 38a-336 (b) required the plaintiff to exhaust the policy limits of both the owner and the operator of the Cifarelli vehicle. The plaintiff argues that she was required to exhaust only the liability policy limit of either the owner or the operator and, because she had exhausted the owner’s policy, she had triggered her underinsured motorist coverage. We are unpersuaded.

Section 38a-336 (b) establishes the exhaustion requirement for underinsured motorist coverage. This subsection provides that an insurance company is obligated to make payment to its insured “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 . . . .’’(Emphasis added.) The word “all” and the plural words “bonds” and “policies” found in § 38a-336 (b) would be rendered meaningless if not read to require exhaustion of all the policies applicable to the underinsured vehicle at the time of the accident. The language of the statute clearly anticipates circumstances under which coverage by more than one liability policy will be available, and a case such as this, in which there is a policy covering the automobile, namely, the Patriot General policy, and a different policy covering the liability of the operator, namely, the ITT policy, is the paradigm that the statute contemplates. In Continental Ins. Co. v. Cebe-Habersky, supra, 214 Conn. 213, we concluded that a single policy is exhausted only when the limit of coverage actually has been paid to the claimant. Accordingly, if the plaintiff did not receive payment of the full policy limits of the applicable policies, namely, the owner’s policy and the operator’s policy, she cannot prevail on a claim under her underinsured motorist policy.

Indeed, § 38a-336 (e) defines an “underinsured motor vehicle” as “a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subsection (b) of this section.” Accordingly, in order to reach the issue of coverage under subsection (b), a determination must be made that the sum of all the applicable policies provides less coverage than that provided for under the plaintiffs uninsured motorist policy. “In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result. . . . State v. Hinton, 227 Conn. 301, 320, 630 A.2d 593 (1993).” (Internal quotation marks omitted.) Elliot v. Sears, Roebuck & Co., 229 Conn. 500, 515, 642 A.2d 709 (1994). Common sense dictates that the legislature did not intend that the calculation as to whether a vehicle is underinsured encompasses all the applicable policies and, at the same time, intend the exhaustion requirement to mandate that the plaintiff exhaust only one policy of his choosing.

The plaintiff claims that, notwithstanding the language of § 38a-336 (b), she is not required to exhaust all the policies applicable to the Cifarelli vehicle at the time of the accident. Rather, she argues that she was required to exhaust the policy limit of only one tortfeasor, in this case either the owner or the operator of the Cifarelli vehicle.

The plaintiffs claim relies upon our holding in General Accident Ins. Co. v. Wheeler, supra, 221 Conn. 211, in which we determined that, in order to trigger underinsured motorist coverage, “the insured merely needs to exhaust the liability policies of one tortfeasor.” The plaintiff claims that pursuant to Wheeler, her exhaustion of the vehicle owner’s insurance was sufficient to trigger her underinsured motorist coverage. The plaintiff’s reliance on our holding in Wheeler is misplaced.

In Wheeler, the sole issue was “whether an insured, where there is more than one tortfeasor responsible for the accident, may recover under his or her underinsured motorist policy before first exhausting the liability insurance policies of all the tortfeasors.” Id., 207. We concluded “that an insured is required to exhaust the liability insurance coverage of only one tortfeasor in order to recover underinsured benefits.” Id. In Wheeler, the claimant had been injured when he had been pinned between a parked vehicle and a moving vehicle. The limit of the only liability policy applicable to the moving vehicle had been paid to the claimant pursuant to a settlement agreement. The claimant also, however, had brought a suit which was pending at the time of our decision in Wheeler against the city of Dan-bury and two of its police officers. In that suit, the claimant had alleged that the negligence of the police officers was a proximate cause of the claimant’s injuries, because they had positioned their unattended police vehicle in such a manner that its headlights had blinded the driver of the moving vehicle. Id., 207-208. We determined that the claimant could pursue underinsured motorist benefits without awaiting the result of that lawsuit. Id., 211. Our holding in Wheeler, therefore, concerned multiple tort claims arising out of an accident involving more than one potentially at fault vehicle.

We did not envision the application of either our holding or our language in Wheeler to a situation concerning a single tort claim involving a single at fault vehicle, where the operator and owner of that vehicle each had a liability policy applicable to the accident at issue. Despite our language in Wheeler, whether the owner is a “tortfeasor” is irrelevant to whether his policy covered the incident at issue, because that policy covered not only the negligent operation of the vehicle by the owner, but the negligent operation by others as well, including the operator.

The sole tort giving rise to the plaintiff’s claim in this case was the negligence of the operator of the vehicle. In Wheeler, by contrast, our holding was that the insured need exhaust only the insurance policy applicable to the one underinsured vehicle, even when the insured may have had other opportunities for recovery. We did not intend Wheeler to relieve the burden on the plaintiff to exhaust the limits of all policies applicable to the underinsured vehicle at the time of the accident, simply because each policy was held by a different person, each of whom might be characterized as a tortfeasor.

The plaintiff next claims that the express terms of her policy require only that she exhaust the insurance coverage of either the owner or the operator of the tortfeasor vehicle before turning to her own underinsured motorist coverage. The plaintiff’s claim revolves around the meaning of a policy provision that states: “We will pay compensatory damages which an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury: 1. Sustained by an insured; and 2. Caused by an accident.” (Emphasis added.) The plaintiff claims that the use of the disjunctive “or” means that underinsured motorist coverage is triggered by the exhaustion of the liability insurance of either the owner or the operator.

We are unpersuaded that this policy provision can be read to have the meaning ascribed to it by the plaintiff. This provision is not an exhaustion requirement, but rather is a statement of liability coverage. Exhaustion is a matter of statutory policy. Although an insurance company may provide greater benefits than those required by statute by relaxing the underinsured motorist exhaustion requirement; see Regs., Conn. State Agencies § 38a-334-3; we will not ordinarily read a policy to provide such a deviation from the statutory scheme in the absence of a reasonably expressed or implied intention to do so. In this case, the plaintiff does not point to any provision in the contract, nor have we found one, that specifies an exhaustion requirement for underinsured motorist coverage. The exhaustion requirement of § 38a-336 (b) is therefore incorporated into the plaintiffs insurance contract.

Finally, the plaintiff, relying on Travelers Ins. Co. v. Kulla, 216 Conn. 390, 579 A.2d 525 (1990), claims that because the operator’s vehicle was totally unrelated to the accident, the liability insurance policy covering the operator’s vehicle cannot be considered to meet the definition of an “underinsured motor vehicle” pursuant to § 38a-336 (e). Because § 38a-336 (b) provides a substantially similar identical definition as to which policies are applicable at the time of the accident, she claims, the operator’s policy was not applicable to the accident. We disagree.

The plaintiff is correct that, in accordance with our holding in Travelers Ins. Co. v. Kulla, supra, 216 Conn. 390, the operator’s vehicle, which was not involved in the accident, cannot be considered to be the underinsured motor vehicle for the purposes of accessing the plaintiff's underinsured motorist coverage. The plaintiff, however, misreads Kulla to provide that, for purposes of determining whether exhaustion has been accomplished under § 38a-336 (b), an insurance policy covering a motor vehicle not involved in an accident is not available to provide liability coverage for the owner of that vehicle who is operating a different vehicle, in this case the Cifarelli vehicle, that was involved in the accident. This was not our holding in Kulla.

Our conclusion in Kulla was simply that, in determining whether underinsured motorist coverage is triggered, it is the sum of the policy limits applicable to the vehicle actually involved in the accident that must be considered. In that case, the insured argued that the operator’s vehicle was the underinsured vehicle, even though that vehicle was causally unrelated to the accident in question. The insured did not claim that, and we did not consider whether, he was not required to exhaust the limits of all policies covering the vehicle that was involved in the accident. Indeed, it is notable that in Kulla, both the owner’s and the operator’s insurance policies, both of which were applicable to the accident vehicle at the time of the accident, were exhausted before the claimant pursued his underinsured motorist coverage. Id., 393.

The judgment is affirmed.

In this opinion the other justices concurred.

       In the underlying proceedings, the policy held by the operator was also referred to as the Twin City Fire Insurance Company policy.

       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).

       The plaintiff also claims that the arbitration panel majority improperly concluded that the parties had stipulated that a no-fault credit of $1666.66 was due the defendant. Because we conclude that the trial court properly determined that the plaintiff had not triggered underinsured motorist coverage, the credit issue is irrelevant and we do not address it.

       At oral argument in this court, the plaintiff suggested that the ITT policy might not have provided coverage for the operator while operating the Cifarelli vehicle. This issue was not briefed and the liability portion of the ITT policy was not filed with this court. The defendant asserts that the ITT policy covered the operator for the operation of any vehicle. We note that the arbitrators’ majority opinion and the trial court’s memorandum both presume such coverage, and in the absence of any evidence offered to the contrary, and with the understanding that the plaintiff never attempted to collect against that policy, we presume that the arbitrators and the trial court properly reviewed the ITT policy and concluded that coverage existed.

       Accordingly, we need not determine whether the owner of the at fault vehicle was a “tortfeasor” under the circumstances of this case.

       The Patriot General policy was not included in the record submitted to the court. The majority of the arbitrators found, however, that “[the operator] had liability coverage for his at fault operation of the Cifarelli vehicle under the provisions of the Patriot General Insurance Company’s policy insuring [the owner’s] vehicle and [the operator’s] operation of said vehicle for limits of $20,000.00 which limits have been paid to the claimant.” The plaintiff has not challenged this finding.

       Indeed, we note that the briefs in Wheeler support this conclusion. The insured stated in his brief: “General Accident argues, as it did in the trial court, that the plural use of the words ‘judgments and settlements’ and ‘bonds and insurance policies’ utilized in [§ 38a-336 (b)].supports its interpretation that [§ 38a-336 (b)] applies to all tortfeasors. Such reliance is misplaced because it ignores the common situation where more than one party/defendant(e.g., owner, operator, employee, agent, lessee, etc.) may be held liable for the negligence in the operation of a single motor vehicle and that a single vehicle may be insured under multiple insurance policies. . . . Thus, the plural me of the words judgments and settlements is entirely consistent with the position that only the policies applicable to a single vehicle must be exhausted in order to trigger underinsured motorist coverage.” (Emphasis added.) General Accident Ins. Co. v. Wheeler, Conn. Supreme Court Records & Briefs, Oct. Term, 1991, Defendants’ Brief pp. 6-7.

       Section 38a-334-3, formerly § 38-175a-3, of the Regulations of Connecticut State Agencies provides: “language of policies, presumption re COVERAGE
      “The provisions herein required need not be stated in the language or form of these regulations, but the coverage afforded shall be of equal or greater benefit to the insured. Policies affording a coverage to which these regulations apply shall be deemed to afford insurance under such coverage at least equal to that required by these regulations.” (Emphasis added.)


text:
    Michael Almeida v. Liberty Mutual Insurance Company Liberty Mutual Insurance Company v. Michael Almeida
    (14955)
    Callahan, Borden, Norcott, Katz and Palmer, Js.
    Argued March 23
    decision released August 8, 1995

      JohnK. McDonald, for the appellant (Liberty Mutual Insurance Company).

      Daniel D. Skuret, with whom, on the brief, was Daniel D. Skuret III, law clerk, for the appellee (Michael Almeida).
   Norcott, J.

The principal issue in this appeal is whether the trial court properly granted an application to vacate an arbitration award. Michael Almeida, the plaintiff in the first case and the defendant in the second case (plaintiff), was injured in a motor vehicle accident and subsequently filed a claim for underinsured motorists benefits with Liberty Mutual Insurance Company, the defendant in the first case and the plaintiff in the second case (defendant). The defendant denied coverage and the parties submitted the claim to compulsory arbitration. The arbitration panel found for the defendant. The plaintiff filed an application to vacate the arbitration award and the defendant filed an application to confirm the award. The trial court vacated the arbitration award and the defendant appealed from the judgment of the trial court to the Appellate Court. We transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c), and we reverse the judgment of the trial court.

The following undisputed facts are relevant to this appeal. On September 11,1987, at approximately 12:43 a.m., on Rubber Avenue in Naugatuck, the plaintiff was seriously injured when he was struck by an insured vehicle driven by Arthur D. Vernon. Vernon was intoxicated, speeding and driving without the aid of headlights. The plaintiff collected $20,000, the maximum coverage on Vernon’s liability insurance policy, and then filed a claim with the defendant for underinsured motorist insurance benefits.

On the evening of the accident, the plaintiff had been driving a 1977 Chevrolet Blazer that was owned by Georgette Almeida, the plaintiff’s stepmother, and insured by the defendant. The plaintiff contended that, at the time of the accident, he had been “occupying” the insured vehicle and thus was covered by his stepmother’s policy. The defendant denied the plaintiff’s claim that he was “occupying” the vehicle. Pursuant to the terms of the policy and General Statutes § 38a-336 (c), the plaintiff’s claim was submitted to compulsory arbitration before a three member arbitration panel.

The specific facts of the accident were vigorously contested at the arbitration hearing. The plaintiff testified that the accident had occurred after he had crossed Rubber Avenue from north to south, and had reached the Blazer, which he claimed had been parked on the southern shoulder of the road. He testified that, as he had placed his hand on the door handle with his thumb on the depressor, his wife had called out to him to warn him of Vernon’s vehicle, which was proceeding east on Rubber Avenue. The plaintiff further testified that, in an effort to avoid being struck, he had turned away from the Blazer and had headed north, back across Rubber Avenue. At the time that he was struck by Vernon’s vehicle, the plaintiff claimed to have been three or four feet away from the Blazer.

The defendant claimed that the plaintiff’s testimony was not credible in that it contradicted the police report, the testimony of the investigating police officer, Ken Butler, the plaintiff’s prior assertions in his proof of loss statement as to how the accident had occurred and the assertions in his complaint in court that he had filed against Vernon. According to these statements, the plaintiff had not reached the Blazer prior to the accident, but had been walking south across Rubber Avenue toward the Blazer when he was struck by Vernon’s vehicle. In addition, Butler testified that, at the time of impact, the plaintiff had been in the middle of the street and that the Blazer had not been parked on the street as the plaintiff had contended, but instead had been parked in a parking lot adjacent to the road.

On December 17, 1992, the panel issued its unanimous decision denying the plaintiffs claim. The panel’s decision provided in relevant part: “The Claimant’s testimony was that he had crossed from north to south to the Blazer parked east on Rubber Avenue and had placed his hand on the door handle with his thumb on the depressor getting ready to open the door when, having heard his wife call out to him, he became aware of the Vernon vehicle driving east on Rubber Avenue. In response, he turned away from the Blazer and to his right in the direction of the oncoming truck and headed back across Rubber Avenue in a northerly direction when struck at a point he testified was three to four feet from the Blazer in the eastbound lane of travel.

“The Plaintiff’s testimony established he was not, at the time of impact ‘in’ the vehicle, ‘getting in’ the vehicle, ‘getting on’ the vehicle, ‘getting out’ of the vehicle, or ‘getting off’ the vehicle since his back was then turned toward the Blazer—which he had not ever entered—and was three to four feet away from it. The Connecticut Supreme Court has concluded the word ‘upon’ cannot be expanded so as to eliminate the necessity of physical contact with the insured vehicle. Testone v. Allstate Ins. Co., 165 Conn. 126, 133-34, [328 A.2d 686] (1973). Absent physical contact with the vehicle, ‘it cannot be said that he was “upon” that vehicle.’ Id., 134. Prior intent to enter a vehicle is not ‘entering’ a vehicle within [the] policy meaning. Id. That conclusion is made more inescapable here where the Claimant is struck (accepting the Claimant’s version of events as true) at a point in time when he no longer intended to enter the vehicle but was in fact moving away from it. Testone makes clear the Claimant’s status as pedestrian or occupant is determined at the time of impact. Id. The policy definition of ‘occupying’ establishes the Claimant was not an occupant of the Blazer when struck. “The arbitrators are unanimous in finding there can be no recovery.” (Emphasis added.)

The plaintiff filed an application in the trial court to vacate the award, claiming that the arbitrators “imperfectly executed their powers,” “misconstrued and misapplied the law,” and “made legal rulings predicated on factual findings which are contrary to the evidence submitted.” The defendant, in a separate action, filed a motion to confirm the award stating that “the [finding of the arbitrators conforms to the submission, is in compliance with the law, and is based on substantial evidence.” The two actions subsequently were consolidated.

The trial court granted the plaintiffs application to vacate the arbitration award pursuant to General Statutes § 52-418. In its decision, the trial court stated: “Accepting that version of events put forth by the arbitrators, the plaintiff reached his vehicle and placed his left hand on the door handle with his thumb on the door handle button and was about to open the door to that motor vehicle when his wife alerted him to the oncoming Vernon vehicle.” On the basis of this factual predicate, the trial court concluded that the panel improperly had required actual physical contact with the vehicle under Testone v. Allstate Ins. Co., supra, 165 Conn. 126. The trial court determined that under certain emergency circumstances, “physical contact may not be required to satisfy a policy’s definition of ‘occupying’. . . .” See Katz v. Ocean Accident & Guarantee Corp. Ltd., 202 Misc. 745, 112 N.Y.S.2d 737 (1952). The trial court stated that it would be “bizarre and illogical to deny coverage to this plaintiff who attempted to avoid injury while providing coverage to an individual who makes no such effort to avoid injury.” The trial court concluded that “under the facts as found by the arbitrators,” the plaintiff was entitled to underinsured motorist benefits and, accordingly, granted the plaintiff’s motion to vacate the arbitration award. (Emphasis added.)

Thereafter, the defendant moved to open the trial court’s judgment on the basis of mutual mistake. As evidence, the defendant submitted an articulation, rendered after the trial court’s decision, by two of the three members of the arbitration panel. In their articulation, the arbitrators stated that they had not credited the testimony of the plaintiff. The trial court denied the defendant’s motion to open, stating that “nowhere in the arbitrator’s finding does it indicate that the arbitrators discredited the claimant’s version of events.” Further, the trial court stated that the. attempted articulation by the arbitration panel was signed by only two of the arbitrators and therefore violated § 38a-336 (c), which requires that “the arbitration proceeding shall be conducted ... by a panel of three arbitrators 77

On appeal, the defendant claims that the trial court improperly granted the plaintiff’s motion to vacate the arbitrators’ award on the basis of the trial court’s erroneous interpretation of the award as a finding that the arbitrators had credited the plaintiff’s version of events. The defendant claims that there was substantial evidence in the record to support the arbitrators’ award and, therefore, that the trial court should have granted the defendant’s motion to confirm the award. We agree.

A party not satisfied with a compulsory arbitration award may move to vacate the award pursuant to § 52-418. See footnote 7. “It is the established policy of the courts to regard awards with liberality.” (Internal quotation marks omitted.) Costello Construction Corp. v. Teamsters Local 559, 167 Conn. 315, 320, 355 A.2d 279 (1974). “Every reasonable presumption and intendment will be made in favor of an award of arbitrators and of their acts and proceedings.” Ramos Iron Works, Inc. v. Franklin Construction Co., 174 Conn. 583, 590, 392 A.2d 461 (1978); O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, 203 Conn. 133, 145, 523 A.2d 1271 (1987). “Hence, the burden rests on the party attacking the award to produce evidence sufficient to invalidate or avoid it.” Von Langendorff v. Riordan, 147 Conn. 524, 527, 163 A.2d 100 (1960). Thus, a reviewing court must uphold an arbitration award unless it determines that the factual findings of the arbitrators are not supported by substantial evidence in the record. Rydingsword v. Liberty Mutual Ins. Co., 224 Conn. 8, 21, 615 A.2d 1032 (1992); Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 660-61, 591 A.2d 101 (1991); Allstate Ins. Co. v. Howe, 31 Conn. App. 132, 135-36, 623 A.2d 1031 (1993). In cases where the arbitrators do not explicitly state findings, which they are not required to do, a reviewing court must search the record to determine whether there is substantial evidence to support the award. See Chmielewski v. Aetna Casualty & Surety Co., supra, 667.

In reviewing the arbitrators’ award, the trial court “[accepted] that version of events put forth by the arbitrators.” We conclude, however, that the award made no findings of fact, but merely recited testimony. “[T]he statement of what a witness testified to is not, in that form, even a statement of an evidential fact.” Cutler v. MacDonald, 174 Conn. 606, 614, 392 A.2d 476 (1978). The arbitration award simply recounted the plaintiff’s testimony, as evidenced by its use of such phrases as “the Claimant’s testimony was.” Such recitations of testimony are not findings. C.I.T. Corp. v. Cohen, 117 Conn. 159, 161, 167 A. 102 (1933).

The only portion of the arbitration award that even arguably could be considered a finding of fact is the statement in the arbitrators’ decision that the decision “is made more inescapable here where the Claimant is struck (accepting the Claimant’s version of events as true) at a point in time when he no longer intended to enter the vehicle but was in fact moving away from it.” (Emphasis added.) The practice of accepting facts as true for the purposes of argument, however, does not transform those facts into findings by the arbitration panel. See, e.g., Quimby v. Kimberly Clark Corp., 28 Conn. App. 660, 664, 613 A.2d 838 (1992) (construing similar language in context of motion to strike); Whitely v. Sebas, Superior Court, judicial district of Ansonia-Milford, Docket No. CV90031783S (August 20, 1990) (“[t]he practice of accepting well pleaded facts in the complaint as true for purposes of a motion to strike does not transform those facts into admissions”). We determine that, although inartfully stated, the language of the award demonstrates that the arbitrators accepted the plaintiffs version of the facts as true for purposes of argument only. In other words, the arbitrators construed the facts in a manner most favorable to the plaintiff to demonstrate that, even if the plaintiffs version were credible, the plaintiff still could not prevail on his underlying claim. The wording of the arbitrators’ decision does not transform such statements into findings of fact.

Accordingly, we conclude that the arbitrators did not make any findings of fact and, therefore, that the trial court lacked the factual basis on which to decide whether the arbitration panel had improperly ignored the existence of an emergency exception to Testone. Normally, in a case such as this, we would remand to the trial court with instructions to conduct a new review of the arbitration award. “Nonetheless, because the administrative record before us on appeal is identical to that which was before the trial court, the interests of judicial economy would not be served by a remand in this case.” Connecticut Light & Power Co. v. Dept. of Public Utility Control, 216 Conn. 627, 639, 583 A.2d 906 (1990). We therefore review whether there was substantial evidence in the record to support the arbitrators’ award.

On the basis of the record before them, the arbitrators reasonably could have found that the plaintiff was not in the process of getting into his vehicle before he was struck. The defendant introduced into evidence the plaintiffs proof of loss statement; see footnote 5; the plaintiffs complaint filed against Vernon; see footnote 6; as well as a statement from his stepmother, the owner of the car. All of these documents support the defendant’s version of events, namely, that prior to the accident, the plaintiff was a pedestrian, walking across Rubber Avenue toward his vehicle. This rendition is also supported by the police report; see footnote 4; and the testimony of Butler, the investigating officer at the scene. In the police report, Butler stated that “Mr. Almeida’s wife stated that she and Mr. Almeida were crossing the street from Dean’s Restaurant to the parking lot, in the crosswalk, when Michael was struck by the truck. . . .’’In addition, Butler testified that he was familiar with the Blazer and that it was not parked on the street as the plaintiff had contended, but instead was parked in the parking lot adjacent to the road. Therefore, on the basis of our independent review of the record, we conclude that there is substantial evidence in this record to support the arbitrators’ award. See Chmielewski v. Aetna Casualty & Surety Co., supra, 218 Conn. 660-61 n.15. Consequently, we need not reach the question of whether physical contact with the insured vehicle at the time of impact is required, as we articulated in Testone v. Allstate Ins. Co., supra, 165 Conn. 133-34, or whether it may be excused in emergency circumstances for purposes of underinsured motorist coverage.

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

In this opinion the other justices concurred.

       The insurance policy issued to the plaintiffs stepmother defined “occupying” as “in, upon, getting in, on, out or off” of the insured vehicle.

       The policy provides in relevant part: “arbitration
      “A. If we and an insured do not agree:
      “1. Whether that person is legally entitled to recover damages under this Part; or
      “2. As to the amount of damages:
      “either party may make a written demand for arbitration. In this event, each party will select an arbitrator. The two arbitrators will select a third. If they cannot agree within 30 days, either may request the selection be made by a judge of a court having jurisdiction.
      “B. Each party will:
      “1. Pay the expenses it incurs; and
      “2. Bear the expenses of the third arbitrator equally. Unless both parties agree otherwise, arbitration will take place in the county in which the insured lives. Local rules of law as to procedure and evidence will apply. A decision agreed to by two of the arbitrators will be binding as to:
      “1. Whether the insured is legally entitled to recover damages; and
      “2. The amount of damages. . . .”

       General Statutes S 38a-336 (c) provides in relevant part: “Each automobile liability insurance policy . . . which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. . . .”

       The police investigation report, signed by Butler as the investigating officer, provides in relevant part: “On the above time and date this officer and officer Nichols were dispatched to Dean’s Restaurant on Rubber Ave. on the report of a motor vehicle/pedestrian accident. Upon arrival we found Mr. Almeida lying face down on Rubber Ave. . . . Mr. Almeida’s wife stated that she and Mr. Almeida were crossing the street from Dean’s Restaurant to the parking lot, in the crosswalk, when Michael was struck by the truck. . . .”

       In his September 30, 1988 proof of loss claim, the plaintiff described the accident as follows: “I was walking across Rubber Avenue in a southerly direction when struck by a motor vehicle operated by Arthur D. Vernon who was proceeding in an easterly direction on Rubber Avenue.” The plaintiff verified the truth of the information contained in this form.

       The plaintiff’s complaint alleged in relevant part that “[a]t said time and place, the plaintiff, MICHAEL ALMEIDA, was walking across said Rubber Avenue, Naugatuck, Connecticut, in a southerly direction, when he was struck by the defendant, ARTHUR D. VERNON’S truck and thrown into the air and forcibly to the ground sustaining personal injuries and consequential loss as hereinafter set forth.”

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

       This articulation, dated April 26,1994, provided that “the majority of the arbitrators did not find credible that portion of the Claimant’s testimony that he had placed his hand ... to open the door when, having heard his wife call out to him” and that “the arbitrators’ use of the language ‘accepting the Claimant’s version of events as true’ represented the unanimous finding that, even if the Claimant’s testimony [were] credible— which the majority found it was not, the Claimant could not recover under Testone v. Allstate Ins. Co., [supra, 165 Conn. 133-34], for the reasons stated in the Finding dated December 17, 1992.”
      The parties offer no explanation as to why this articulation was not signed by the third arbitrator.

       “ ‘Substantial evidence’ will be found to exist if the . . . record supplies a substantial basis of fact from which the court reasonably can infer the fact in issue.” Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 660-61 n.15, 591 A.2d 101 (1991). “The fact that a possibility exists that two inconsistent conclusions may be drawn from the evidence does not prevent the arbitrators’ finding from being supported by substantial evidence.” Allstate Ins. Co. v. Howe, 31 Conn. App. 132, 135-36, 623 A.2d 1031 (1993).

       Indeed, the plaintiff’s stepmother described the accident as follows: “He was walking . . . toward the car, crossing the street. I believe the drive was . . . as so . . . the truck ... I think Jeanne was ... I don’t remember if she went across the street . . . afterwards. Michael turned to say something to her or to check on her or something like that and the truck came out of . . . what seemed like . . . nowhere.”

       Because the articulation, if it were valid, would only support the validity of the award, and because, in the absence of any findings by the arbitrators supporting the conclusion that the plaintiff was faced with an “emergency” situation, we conclude that the trial court improperly vacated the arbitration award, we need not address whether a trial court may open a judgment to consider a subsequent articulation by an arbitration panel or whether the articulation was valid notwithstanding the fact that it had been signed by only two of the three arbitrators.


text:
    Meritor Credit Corporation v. Stephen Phillips et al.
    Decided June 1, 1995

      Deborah Phillips, pro se, in support of the petition.
   The defendant Deborah Phillips’ petition for certification for appeal from the Appellate Court (AC 14143) is denied.


text:
    State of Connecticut v. Kendrick Wilkes
    The Supreme Court docket number is SC 15278.
    Decided June 1, 1995

      Richard F. Jacobson, assistant state’s attorney, in support of the petition.

      Susan M. Hankins, assistant public defender, in opposition.
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 37 Conn. App. 456 (AC 12513), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that the trial court’s improper failure to hold a hearing regarding the witness’ purported claim of the fifth amendment privilege against self-incrimination was not harmless?”


text:
    State of Connecticut v. Scott Brian Wolff
   The state of Connecticut’s petition for certification for appeal from the Appelate Court, 37 Conn. App. 500 (AC 12669), is granted, limited to the following issue:

The Supreme Court docket number is SC 15279.

Decided June 1, 1995

David J. Sheldon, deputy assistant state’s attorney, in support of the petition.

Suzanne Zitser, assistant public defender, in opposition.

“In the circumstances of this case, did the Appellate Court properly conclude that the trial court did not conduct an adequate canvass before permitting the defendant to waive counsel?”


text:
    State of Connecticut v. Omar Lopez
    Decided June 1, 1995

      Neal Cone, assistant public defender, in support of the petition.

      Judith Rossi, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 37 Conn. App. 509 (AC 11458), is denied.


text:
    Davey Clay et al. v. Laura Teach et al.
    Decided June 1, 1995

      Frederic E. Mascolo, in support of the petition.

      Thomas M. Murtha, in opposition.
   The plaintiff Martin Hayre’s petition for certification for appeal from the Appellate Court, 37 Conn. App. 556 (AC 13437), is denied.


text:
    State of Connecticut v. Terrence Trine
    The Supreme Court docket number is SC 15277.
    Decided June 1, 1995

      Kevin T. Kane, state’s attorney, in support of the petition.
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 37 Conn. App. 561 (AC 13194), is granted, limited to the following issue:

“In the circumstances of this case, does article first, § 7, of the Connecticut constitution require the suppression of contraband evidence obtained by a police officer during a patdown search?”


text:
    Angel Colon v. Savin Brothers, Inc.
    Decided June 1, 1995

      Brian Prucker, in support of the petition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 37 Conn. App. 912 (AC 13759), is denied.


text:
    First Federal Bank, F. S. B. v. Richard G. Hastens et al.
    Decided June 1, 1995

      Richard G. Kastens, pro se, in support of the petition.

      Robert G. Golger, in opposition.
   The named defendant’s petition for certification for appeal from the Appellate Court, 37 Conn. App. 913 (AC 13768), is denied.


text:
    State of Connecticut v. Edilberto Jurado
    Decided June 1, 1995

      Richard S. Cramer, in support of the petition.

      Nancy L. Gillespie, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 37 Conn. App. 920 (AC 13144), is denied.


text:
    Howard Meehan v. Board of Education of the Town of East Lyme
    Decided June 1, 1995

      Barry Ward, in support of the petition.

      Kenneth J. McDonnell, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 37 Conn. App. 922 (AC 13441), is denied.


text:
    State of Connecticut v. Keijam Tucker
    Decided June 2, 1995

      Donald Dakers, special public defender, in support of the petition.

      Michele C. Lukban, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court (AC 14468) is denied.


text:
    State of Connecticut v. James Egan
    Decided June 2, 1995

      Francis J. DiScala, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 37 Conn. App. 213 (AC 12389), is denied.


text:
    First Federal Savings and Loan Association of Rochester v. Gail Connelly Pellechia et al.

    The Supreme Court docket number is SC 15280.
    Decided June 2, 1995

      Ann M. Siczewicz, in support of the petition.

       The appeal was withdrawn February 5, 1996.

   The plaintiff’s petition for certification for appeal from the Appellate Court, 37 Conn. App. 423 (AC 13550), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that, pursuant to General Statutes § 49-14 (a), the thirty day time limit for filing a motion for deficiency judgment is calculated from the last law day?”


text:
    Benjamin Gyadu v. Administrator, Unemployment Compensation Act
    Decided June 13, 1995

      Benjamin Gyadu, pro se, in support of the petition.
   The plaintiff’s petition for certification for appeal from the Appellate Court (AC 14083) is denied.


author: Berdon, J.,

text:
    Roger Emerick v. Robert Kuhn et al.
    Decided June 13, 1995

      Roger Emerick, pro se, in support of the petition.

      Felix J. Springer and Glenn W. Dowd, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court (AC 14554) is denied.

Berdon, J.,

dissenting. I would grant the petition for certification filed by the plaintiff.


text:
    State of Connecticut v. Bruce C. Zollo
    Decided June 13, 1995

      Deborah DelPrete Sullivan, assistant public defender, in support of the petition.

      Timothy J. Sugrue, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 36 Conn. App. 718 (AC 13630), is denied.


text:
    State of Connecticut v. Milton E. Ives, Sr.
    Decided June 13, 1995

      Hubert J. Santos and Hope C. Seeley, in support of the petition.

      Carolyn K. Longstreth, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 37 Conn. App. 40 (AC 12620), is denied.


text:
    State of Connecticut v. Keith Laws
    Decided June 13, 1995

      G. Douglas Nash, public defender, in support of the petition.

      Frederick W. Fawcett, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 37 Conn. App. 276 (AC 12860), is denied.


text:
    State of Connecticut v. Jason Taylor
    Decided June 13, 1995

      Louis S. Avitabile, in support of the petition.

      Nancy L. Gillespie, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 37 Conn. App. 464 (AC 13827), is denied.