author: BERDON, J. PETERS, J.,

text:
    IMPERIAL CASUALTY AND INDEMNITY COMPANY v. STATE OF CONNECTICUT ET AL.
    (SC 15737)
    Berdon, Norcott, Katz, McDonald and Peters, Js.

      Argued April 22
    officially released August 11, 1998

      Gregory T. D’Auria, assistant attorney general, with whom were Carolyn K. Querijero, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, for the appellants (defendants).

      Mark R. Kravitz, with whom were John F. Conway and, on the brief, Bonnie L. Patten, for the appellee (plaintiff).
   Opinion

BERDON, J.

This appeal arises out of a declaratory judgment action filed by the plaintiff, Imperial Casualty and Indemnity Company, with respect to a controversy between it and the defendants, the state of Connecticut and various individual employees of the state police department, regarding insurance coverage to be provided by the plaintiff under two policies that it issued to the defendants. The plaintiff sought a declar ation as to whether it was obligated, under the terms of each of the two policies, to provide a defense for the defendants in ten underlying federal court actions that had been instituted against the defendants by various third parties. The trial court rendered summary judgment in favor of the plaintiff with respect to nine of the eleven counts of the plaintiffs complaint that related to only one of the two policies — the policy that provided coverage for the period extending from July 30,1986, through July 30,1989 (1986-89 policy) — finding that the plaintiff was not obligated to provide the defendants with a defense under the terms of that policy. Subsequently, after a trial, the court determined that the plaintiff did have a duty to provide the defendants with a defense under the terms of the other policy, which provided coverage for the period extending from July 30, 1984, through July 30,1986 (1984-86 policy). Both the plaintiff and the defendants appealed from the judgment of the trial court to the Appellate Court. We transferred the appeals to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c). On April 8, 1998, the plaintiff withdrew its appeal and only the defendants’ appeal remains. We reverse in part the judgment of the trial court.

The following facts are not in dispute. On July 30, 1984, the plaintiff issued to the state the 1984-86 policy, which was entitled “Law Enforcement Professional Liability Insurance Policy.” On July 30, 1986, it issued to the state a second policy, the 1986-89 policy, which bore the same title as the earlier policy and, after twice being renewed, provided coverage through July 30, 1989. In 1989 and 1990, ten lawsuits seeking damages and injunctive relief were filed in the United States District Court for the District of Connecticut against various state police officers, alleging that the officers had engaged in illegal wiretapping during the 1984-86 and 1986-89 policy periods. Specifically, each of the federal complaints alleged that members of the Connecticut state police department had engaged in violations of federal penal statutes, including the antiwiretapping provisions of the Omnibus Crime Control Act of 1968, 18 U.S.C. §§ 2510 through 2521.

After the pleadings were closed in the declaratory judgment action, the plaintiff moved for summary judgment on all eleven counts of its complaint, claiming that it was not obligated to provide the defendants with a defense in the underlying federal actions because the complaints alleged intentional acts that were not within the coverage of either the 1984-86 or the 1986-89 policy. The trial court agreed with the plaintiff with respect to the 1986-89 policy, but determined that the complaints did state claims that were within the coverage provided by the 1984-86 policy. Consequently, the trial court rendered summary judgment on counts three through eleven of the plaintiffs complaint, which pertained to conduct that occurred during the 1986-89 policy period.

In this appeal, the defendants claim that summary judgment improperly was rendered because the 1986-89 policy expressly provides coverage for intentional acts that result in covered injuries, such as the acts alleged in the underlying federal complaints. Alternately, the defendants claim that even if the express provisions of the 1986-89 policy can be considered ambiguous with regard to whether injuries resulting from intentional acts are covered, any ambiguity in the policy language must be resolved in favor of coverage. As a result of their interpretation of the policy and the broad nature of an insurer’s duty to defend, the defendants argue that the plaintiff is obligated to provide them with a defense in the underlying federal actions. The plaintiff argues, conversely, that the 1986-89 policy language expressly excludes from the scope of its coverage intentional acts such as those alleged in the underlying federal complaints. Therefore, the plaintiff argues, it is under no duty to provide a defense for the defendants with respect to intentional conduct alleged to have occurred during the 1986-89 policy period. We conclude that the language of the 1986-89 policy must be interpreted to include coverage for damages arising from intentional acts when the result is a covered injury. Consequently, the plaintiff is obligated to provide the defendants with a defense to the allegations contained in counts three through ten of the underlying federal complaints.

I

As a preliminary matter, we note that the plaintiff objects to the defendants’ claim on appeal that the 1986-89 policy provides coverage for intentional acts because, the plaintiff argues, the defendants conceded in the trial court proceedings that the policy does not cover intentional acts and, therefore, they should not be allowed to raise this claim on appeal. In their opposition to the plaintiffs motion for summary judgment before the trial court, the defendants did not argue specifically that the contract covered all types of intentional acts. Instead, they argued that the plaintiff was obligated to provide them with a defense in the underlying actions because: (1) the defendants might be found liable on the basis of negligence and the policy covers negligent acts; (2) the defendants might be found to have had a good faith basis for their conduct and not to have intended to injure anyone, such that their conduct might not constitute a wilful violation of a penal statute so as to be excluded from the policy’s coverage; and (3) the term “occurrence” as used in the policy need not be defined by the court at the summary judgment stage but should be defined only after further fact-finding occurs. Presumably, because the defendants did not contend specifically that the policy provided coverage for intentional conduct, the trial court stated in its memorandum of decision that the defendants had conceded that such coverage did not exist.

On appeal, the theories advanced by the defendants as a basis for their argument that the plaintiff is obligated to provide them with a defense under the 1986-89 policy are, in some respects, different from the theories relied on at trial. The defendants argue on appeal that the duty to defend exists because the allegations in the underlying complaints potentially state claims for covered injuries as follows: (1) the defendants may be found liable in federal court on the basis of conduct other than intentional conduct, i.e., on the basis of negligent conduct; (2) even if the policy was construed not to cover intentional acts, the policy does not define what constitutes an intentional act and should not be interpreted as excluding coverage for all intentional acts, but only those committed with an intent to cause injury; and (3) the policy definitions of “occurrence” and “personal injury” are internally inconsistent and must be interpreted against the insurer to provide coverage for intentional acts. The plaintiffs objection relates primarily to the third theory of liability.

The plaintiff is correct in its assertion that, ordinarily, “we . . . review a case on the theory upon which it was tried and decided in the trial court”; Lashgari v. Lashgari, 197 Conn. 189, 196, 496 A.2d 491 (1985); and do not address on appeal issues that have not been raised in the trial court. Grody v. Tulin, 170 Conn. 443, 447-48, 365 A.2d 1076 (1976). This practice is in accord with Practice Book § 60-5, which provides in part that this court is not bound to consider a claim “unless [the claim] was distinctly raised at the trial or arose subsequent to the trial.” The application of § 60-5 is discretionary, however, and in exceptional circumstances, even claims not properly raised below will be considered. Generally, “[s]uch exceptional circumstances may occur where a new and unforeseen constitutional right has arisen between the time of trial and appeal or where the record supports a claim that a litigant has been deprived of a fundamental constitutional right and a fair trial.” (Internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 828-29, 614 A.2d 414 (1992). In addition, in some instances we may overlook the procedural error and consider a question not properly raised below, “not by reason of the appellant’s right to have [the claim] determined but because, in our opinion, in the interest of the public welfare or of justice between the parties,” the question ought to be considered. Kavanewsky v. Zoning Board of Appeals, 160 Conn. 397, 401, 279 A.2d 567 (1971).

An example of a case in which we chose to overlook a party’s failure altogether to raise an important claim is Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, 628 A.2d 946 (1993). In Genovese, the plaintiff failed to advance his claim under General Statutes § 31-51bb both in the trial court and initially before this court. We, on our own initiative and in the interests of achieving justice, raised the applicability of that section and ordered the parties to submit supplemental briefs on the issue, ultimately deciding the case on that basis. Id., 479-80 and n.6; see also G. & H. Investment Co. v. Raymond, 113 Conn. 778, 779, 155 A. 497 (1931) (abundant reason to consider claim not raised in proceedings below or in pleadings where by oversight judgment has entered that is contrary to plain language of written instruments that lay at basis of case); Schmidt v. Manchester, 92 Conn. 551, 555, 103 A. 654 (1918) (where applicable statute not brought to attention of court, statute could be raised on appeal because errors arising from absence of actual knowledge always subject to review); Cunningham v. Cunningham, 72 Conn. 157, 160, 44 A. 41 (1899) (same); Suarez-Negrete v. Trotta, 47 Conn. App. 517, 522, 705 A.2d 215 (1998) (“ ‘Connecticut courts have concluded that the misapplication of a statute’ ” may be raised on appeal for first time).

In this case, it is appropriate, in the interest of doing justice between the parties in accordance with the provisions of their written agreement, that we consider the defendants’ theory that the contract provided coverage for intentional torts, despite the fact that the defendants did not make this argument below. First, the interpretation of insurance contracts is a matter of law to be decided by the court and is, therefore, subject to de novo review on appeal. Flint v. Universal Machine Co., 238 Conn. 637, 642, 679 A.2d 929 (1996). Consequently, in interpreting the policy provisions to determine the coverage provided, we are already obliged to examine the contract at length in order to perform a full and thorough review of the trial court’s decision on the contested issue of coverage. In addition, the defendants’ argument does not raise an entirely new issue, but pertains to the very issue that was decided by the trial court and is the subject of this appeal. Furthermore, the record is complete with respect to this argument, and both parties have fully briefed it in their submissions to this court. See Flagg Energy Development Corp. v. General Motors Corp., 244 Conn. 126, 144, 709 A.2d 1075 (1998) (“[ejven if we were inclined to overlook the inconsistency between [the plaintiffs’] arguments to the trial court and to this court ... we could not consider their argument on its merits because we lack the record to do so”); Genovese v. Gallo Wine Merchants, supra, 226 Conn. 479-80 (where court raised issue of applicability of statute never raised in trial court and parties had not briefed issue, court ordered parties to submit supplemental briefs); Scott v. General Iron & Welding Co., 171 Conn. 132, 139, 368 A.2d 111 (1976) (where plaintiff argued on appeal that burden of proof improperly placed on him but did not assign issue of burden of proof as error below, court considered claim on appeal because both parties briefed issue). Under these circumstances, our consideration of the argument will not result in unfairness or unusual hardship for the plaintiff. Therefore, we will address the defendants’ argument.

II

We now turn to the merits of the defendants’ claim that the plaintiff is obligated to provide them with a defense in the underlying proceedings based on the terms of the 1986-89 policy. Whether the plaintiff had a duty to defend under the policy depends on whether, in light of the policy language, the complaints in the underlying federal actions alleged conduct for which coverage was provided. “[A]n insurer’s duty to defend ... is determined by reference to the allegations contained in the [injured party’s] complaint.” Flint v. Universal Machine Co., supra, 238 Conn. 646. The “duty to defend an insured arises if the complaint states a cause of action which appears on its face to be within the terms of the policy coverage.” (Internal quotation marks omitted.) Hogle v. Hogle, 167 Conn. 572, 576, 356 A.2d 172 (1975). Because “[t]he duty to defend has a broader aspect than the duty to indemnify and does not depend on whether the injured party will prevail against the insured”; Missionaries of the Co. of Mary, Inc. v. Aetna Casualty & Surety Co., 155 Conn. 104, 110, 230 A.2d 21 (1967); “[i]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured.” (Emphasis in original; internal quotation marks omitted.) West Haven v. Commercial Union Ins. Co., 894 F.2d 540, 544 (2d Cir. 1990), quoting West Haven v. Liberty Mutual Ins. Co., 639 F. Sup. 1012, 1017 (D. Conn. 1986).

In this case, the parties agree that the allegations contained in the complaints in the underlying federal actions allege intentional conduct on the part of the defendants. The parties disagree, however, as to whether the 1986-89 policy provides coverage for intentional conduct. Therefore, we must examine the policy to determine whether coverage was provided for injuries resulting from intentional acts.

“An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract and enforced in accordance with the real intent of the parties as expressed in the language employed in the policy.” Schultz v. Hartford Fire Ins. Co., 213 Conn. 696, 702, 569 A.2d 1131 (1990). “The determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy.” (Internal quotation marks omitted.) O’Brien v. United States Fidelity & Guaranty Co., 235 Conn. 837, 842, 669 A.2d 1221 (1996). “It is axiomatic that a contract of insurance must be viewed in its entirety, and the intent of the parties for entering it derived from the four comers of the policy.” Flint v. Universal Machine Co., supra, 238 Conn. 643. “The policy words must be accorded their natural and ordinary meaning . . . [and] any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy.” (Citations omitted; internal quotation marks omitted.) Hansen v. Ohio Casualty Ins. Co., 239 Conn. 537, 542-43, 687 A.2d 1262 (1996). “[T]his mle of construction favorable to the insured extends to exclusion clauses.” (Internal quotation marks omitted.) Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 770, 653 A.2d 122 (1995). “Unlike certain other contracts . . . where . . . the intent of the parties and thus the meaning of the contract is a factual question subject to limited appellate review . . . constmction of a contract of insurance presents a question of law . . . which this court reviews de novo.” (Internal quotation marks omitted.) Flint v. Universal Machine Co., supra, 642.

The language in § I (1) of the 1986-89 policy that is the subject of the dispute provides as follows: “[The plaintiff] will pay those sums that [the defendants] become legally obligated to pay as civil damages because of wrongful acts arising out of Law Enforcement activities to which this insurance applies. . . . The insurance only applies to damages caused by wrongful acts arising out of law enforcement activities caused by an ‘occurrence.’ . . .” Section V (4) of the policy defines “occurrence” as “an accident, including continuous or repeated exposure to conditions which result in ‘bodily injury,’ ‘personal injury’ or ‘property damage.’ ” If this were the only relevant language contained in the policy, it would be clear that the policy does not provide coverage for intentional conduct. The policy, however, contains other pertinent language in § V (5) that further explains the coverage provided as follows: “ ‘Personal injury’ means damages arising out of, but not limited to: false arrest, erroneous service of civil papers, false imprisonment, malicious prosecution, assault and battery, libel, slander, defamation of character, discrimination, mental anguish, wrongful entry or eviction, violation of property or deprivation of any rights, privileges or immunities secured by the Constitution and Laws of the United States of America or the State for which the insured may be held liable to the party injured in any action at law, suit in equity, or other proper proceedings for redress. However, no act will be deemed to be or result in personal injury unless committed in the regular course of duty by the insured. ”

The defendants claim that this latter language defining “personal injury” expressly indicates that coverage is provided for damages resulting from intentional acts such as the acts alleged in the underlying federal lawsuits. Specifically, the defendants rely on the fact that § V (4) of the policy provides coverage for “continuous or repeated exposure to conditions which result in . . . ‘personal injury’ ” such as the “deprivation of any rights, privileges or immunities secured by the Constitution and Laws of the United States of America or the State for which the insured may be held liable to the party injured in any action at law, suit in equity, or other proper proceedings for redress” as enumerated in § V (5) of the policy — the types of injuries at issue in this case. The plaintiff argues, however, that by focusing on the sorts of injuries that may be covered, the defendants overlook the fact that the policy defines an occurrence as an accident, and the conduct involved in this case was not accidental, but intentional. The defendants respond that in light of the definition of personal injury set forth in the policy, which appears to include intentional as well as accidental conduct, the word “accident” cannot be interpreted literally but, instead, must be interpreted by considering the policy as a whole, and the definition of personal injury in particular. We agree with the defendants.

Although by defining an occurrence as “an accident” the policy attempts to limit coverage to conduct that is unintentional, this definition, when read in conjunction with the definition of personal injury, gives rise to an internal inconsistency. Specifically, the definition of personal injury indicates that certain injuries may be covered that could have resulted only from intentional conduct, such as false arrest, false imprisonment, malicious prosecution and actions brought under 42 U.S.C. § 1983, as well as many injuries that generally involve intentional conduct, such as assault and batteiy, libel, slander, defamation, discrimination and the violation of other rights, privileges and immunities secured by the constitution and laws of the United States or the state. The definition of occurrence as “an accident,” however, appears to encompass only unintentional conduct. The result is that the policy purports to provide coverage for accidental, intentional torts — torts that, of course, do not exist. In light of this inconsistency, it is impossible to determine solely on the basis of the policy’s express language whether the conduct at issue in this case is covered.

In determining what coverage is provided, however, the policy language is not be read in a vacuum. Ceci v. National Indemnity Co., 225 Conn. 165, 168, 622 A.2d 545 (1993). Rather, the interpretation of the policy language is to be informed by what the parties likely intended in entering the contract. “A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction.” (Internal quotation marks omitted.) 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 294-95, 685 A.2d 305 (1996). In this case, the policy is entitled “Law Enforcement Professional Liability Insurance Policy.” The title indicates that the parties contracted for the purpose of providing coverage for claims associated with the work-related activities of the state’s law enforcement personnel. The defendants contend, and the plaintiff does not dispute, that law enforcement personnel are often subject to claims that by definition involve intentional conduct, such as false arrest, malicious prosecution and actions instituted pursuant to 42 U.S.C. § 1983. It appears unlikely, therefore, that the defendants in this case would have intended to purchase insurance that did not provide coverage for such claims. The plaintiff insists, however, that its intention was to provide coverage only for those injuries that could be inflicted unintentionally.

If we were to interpret the policy as the plaintiff suggests, the only damages relating to personal injuries that would be covered under the policy would be negligent forms of assault and battery, libel, slander, defamation, discrimination, mental anguish, wrongful entry or eviction, violation of property, and rights, privileges or immunities violations, and the erroneous service of civil papers. On the other hand, damages arising from false arrest, false imprisonment, malicious prosecution, and from intentional forms of assault and battery, libel, slander, defamation, discrimination, mental anguish, wrongful entry or eviction, violation of property, and rights, privileges or immunities violations, including § 1983 actions, would all be excluded from the scope of the policy’s coverage. Indeed, coverage for damages resulting from several intentional causes of action— such as false arrest, false imprisonment, malicious prosecution, and § 1983 claims — would be excluded even though the policy purports to provide coverage for personal injuries resulting from those causes of action. The latter result hardly seems rational, and we have difficulty imagining that the defendants could have intended to purchase a policy of insurance that excluded such coverage. Our consideration of the parties’ intent in entering the contract, therefore, provides a compelling reason to interpret the inconsistent policy language as including coverage for intentional acts.

A further reason to interpret the inconsistent policy language as encompassing intentional conduct is the general rule that ambiguous provisions in a contract are to be interpreted against the drafter. This rule applies to contracts of insurance; Hansen v. Ohio Casually Ins. Co., supra, 239 Conn. 542-43; as long as there is ambiguity inherent in the policy that “emanate [s] from the language used in the contract rather than from one party’s subjective perception of the terms.” (Internal quotation marks omitted.) 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., supra, 239 Conn. 295. Because we have already determined, in this case, that it is the language of the policy itself that gives rise to an ambiguity, application of the rule is appropriate and serves to further support our conclusion that the policy must be interpreted to include coverage for intentional acts that result in personal injuries during the policy period.

Finally, our conclusion that the internal inconsistency in the policy language must be interpreted to include coverage for intentional acts that result in personal injuries is in accord with the results reached in other jurisdictions that have interpreted similar policy language. In North Bank v. Cincinnati Ins. Co., 125 F.3d 983, 987 (6th Cir. 1997), the court considered policy language that provided coverage for “occurrences,” which the policy defined as events that “ ‘unexpectedly or unintentionally resulted in personal injury,’ ” where personal injury was defined to include a number of inherently intentional torts such as false arrest, false imprisonment, malicious prosecution, libel, slander and defamation. The court concluded that the policy language was inconsistent and created an ambiguity. Id. The court explained that “[i]n selling the policies, the insurance company uses these conflicting provisions to ‘create the impression that the policy provides coverage for . . . intentional [torts],’ but when an insured attempts to claim coverage the insurance company argues that the [intentional tort] is not actually covered by the policy.” Id. Consequently, the court concluded that the ambiguity in the policy had to be resolved in favor of the insured, to include coverage for intentional discrimination. Id.; see also Hurst-Rosche Engineers, Inc. v. Commercial Union Ins. Co., 51 F.3d 1336, 1342 (7th Cir. 1995); Lineberry v. State Farm Fire & Casualty Co., 885 F. Sup. 1095, 1098 (M.D. Term. 1995); Lincoln National Health & Casualty Ins. Co. v. Brown, 782 F. Sup. 110, 113 (M.D. Ga. 1992); Davidson v. Cincinnati Ins. Co., 572 N.E.2d 502, 508 (Ind. App. 1991); Missouri Property & Casualty Ins. Guaranty Assn. v. Petrolite Corp., 918 S.W.2d 869, 872 (Mo. App. 1996).

We conclude, therefore, that the 1986-89 policy in this case does not exclude coverage for intentional conduct as alleged in the underlying federal proceedings and that, as a result, the plaintiff is not relieved of the duty to provide the defendants with a defense in those proceedings on that basis.

Ill

The plaintiff also claims that it does not have a duty to provide the defendants with a defense because, it argues, the underlying federal complaints allege the wilful violation of a penal statute, and the policy contains an exclusion with respect to such conduct. The policy provides in § I (2) as follows: “Exclusions. This insurance does not apply to . . . (1) [a]ny claim arising out of the willful violation of a penal statute or ordinance. . . .” The defendants argue that, because the complaints allege other causes of action in addition to the wilful violation of 18 U.S.C. § 2511 (1), a federal antiwiretapping statute that has both a civil and a penal component, the plaintiff is not relieved of its duty to defend. We agree with the defendants.

The complaints in the underlying federal actions allege statutory and common-law civil violations and constitutional violations as a result of conduct that allegedly also violated the penal component of the federal antiwiretapping statute. None of the defendants has been charged with violating the penal component of that statute, however, or with violating any other penal statute. Furthermore, it is entirely conceivable that, in the underlying proceedings, the defendants will be found liable in tort or on the basis of constitutional violations despite the fact that they may never be charged with or found guilty of violating the penal component of the federal antiwiretapping statute. This is not a situation, therefore, where, if the defendants are not found guilty of violating the penal component of the federal statute, they cannot be found hable for any of the other damages allegedly incurred. Consequently, the claims cannot be characterized as arising out of “the willful violation of a penal statute” so as to be excluded from coverage under § I (2) (l) of the policy. “The fact that the complaint alleges a claim that is excluded by the policy does not excuse [the] insurer from defending [the] insured where other counts of the claim fall within the provisions of the policy.” 7C J. Appleman, Insurance Law and Practice (1979) § 4684, pp. 78-79. As a result, the plaintiff remains obligated to provide a defense.

Because the complaints in the underlying federal actions allege facts that bring the claims within the coverage of the 1986-89 policy, we conclude that the plaintiff is obligated to provide the defendants with a defense in the underlying federal actions that relate to the 1986-89 policy period.

The judgment of the trial court is reversed in part and the case is remanded to that court for further proceedings.

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

PETERS, J.,

dissenting. I respectfully disagree with the majority opinion on procedural as well as substantive grounds. Accordingly, I dissent.

The central issue in this case is whether the 1986-89 insurance policy issued by the plaintiff, Imperial Casualty and Indemnity Company (insurer), to the defendant state of Connecticut (state) includes coverage for intentional torts.

I

In this appeal, a preliminary threshold burden for the state, as the appellant, to satisfy is whether, as a procedural matter, this issue is properly before this court.

With respect to procedural propriety, we all agree that the state did not preserve a very significant aspect of this central issue at trial. Moreover, we all agree, not only that the issue was not formally preserved at trial, but also that the state’s articulated position at trial contradicted its argument on appeal. In its memorandum of decision on the plaintiffs motion for summary judgment, the trial court expressly observed that the state’s memorandum of law “coneede[d] that intentional behavior is not covered [by the 1986-89 policy].” The state has not, either by a motion for rectification at trial or on appeal, challenged the accuracy of the trial court’s observation.

The question then becomes why this case warrants departure from our customary practice, under Practice Book § 60-5, formerly § 4061, to decline to undertake appellate review of issues that a party has failed to bring to the attention of the trial court. See Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 33, 717 A.2d 77 (1998) (“[w]e ordinarily do not address issues that have not been properly raised before the trial court”); Santopietro v. New Haven, 239 Conn. 207, 219-20, 682 A.2d 106 (1996) (“[o]ur rules already provide that we are not required to consider any claim that was not properly preserved in the trial court”). The majority opinion offers a number of reasons for doing so, none of which I find persuasive.

First, the opinion asserts that the general rule does not apply to issues of law, such as the interpretation of an insurance contract, for which this court, in appropriate cases, undertakes plenary review. It cites no authority for the proposition that issues of law categorically are excluded from the general rule set forth in the Practice Book. It is improbable that we would have adopted such an exclusion, because, as a matter of course, only issues of law provide an occasion for plenary review of a trial court’s judgment. With respect to a trial court’s factual findings, it has been undisputed, for at least twenty years, that appellate review is limited to a determination of whether the court’s findings were “clearly erroneous.” Practice Book § 60-5, formerly § 4061; see Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980), and its progeny. With respect to a trial court’s conclusions of law, we repeatedly have heeded the cautions contained in the Practice Book rule. See Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., supra, 245 Conn. 33-34; Santopietro v. New Haven, supra, 239 Conn. 219; Chaplin v. Balkus, 189 Conn. 445, 447, 456 A.2d 286 (1983) (“[n]othing in the record before us establishes that this case presents exceptional circumstances warranting departure from our well-established rule limiting appellate review to claims distinctly raised in the trial court”).

Second, the opinion states that the question of an exclusion for intentional misconduct did not have to be raised at trial because it was intertwined with other coverage issues that are properly in this court. In effect, the majority’s reasoning is that the issue is not new because it implicitly was raised at trial. In the absence of an express disclaimer in the trial court, I would agree. In this case, however, raising three arguments for a particular construction of a contract does not alert the court to a fourth, when that aspect of the coverage issue expressly was taken out of the case by the state at trial. We repeatedly have held that “[a] party cannot present a case to the trial court on one theory and then ask a reversal in the supreme court on another.” (Internal quotation marks omitted.) Grody v. Tulin, 170 Conn. 443, 447, 365 A.2d 1076 (1976), quoting W. Maltbie, Connecticut Appellate Procedure (2d Ed. 1957) § 305; see Schaffer v. Schaffer, 187 Conn. 224, 227-28 n.3, 445 A.2d 589 (1982) (“[w]e cannot find error in a trial court’s failure to make a decision which it was never called upon to make”); McNamara v. New Britain, 137 Conn. 616, 618, 79 A.2d 819 (1951) (“[a] plaintiff cannot try his [or her] case on one theory and appeal on another”).

Third, the opinion states that the issue is properly in this court because the parties have briefed it on appeal. Proffered as a general rule, this statement flatly contradicts Practice Book § 60-5. Section 60-5 may be misguided. If so, the Practice Book should be amended. Until its amendment, this court should not, in passing, deprive the provision of its operative effect. As it stands, the rule serves the salutary purpose of permitting the appellee to raise procedural and substantive issues without having to waive one or the other. Under the proffered rule, the appellee would be required to take the risk of not briefing substantive issues in order to preserve its procedural claims. I am not prepared to assume that this is the preferred position. See W. Horton & S. Cormier, Rules of Appellate Procedure (1998 Ed.) § 4061, p. 156 (“[e]ven if it is likely that the Supreme Court will not review an issue, it is risky for the appellee not to brief the issue on the merits”).

Fourth, the opinion relies on the fact that there is an adequate trial court record to enable us to resolve all the disputed issues now raised on appeal. Again, I would find that reliance to be reasonable in other circumstances, but not in this case in light of the state’s express disclaimer of coverage for intentional torts at trial. See Grody v. Tulin, supra, 170 Conn. 447; McNamara v. New Britain, supra, 137 Conn. 618.

Finally, the opinion states that appellate consideration of whether the insurance contract excludes intentional torts is warranted because the insurer, as appellee, has not demonstrated that unfairness or unusual hardship will result from this court’s expansive view of its appellate authority. It is not surprising that the insurer has made no such showing because no prior case has been cited that tied the provisions of § 60-5 to proof of prejudice. Again, § 60-5 maybe wrongheaded in this respect. Many procedural rules take prejudice into consideration. As a matter of construction of the Practice Book as it is presently worded, however, the absence of any textual reference to prejudice must be assumed to have been intentional. It is unfair to require the insurer in this case to comply with a requirement of which it had no warning.

Despite my disagreement with the justifications stated in the majority opinion, I understand, of course, that the principles stated in § 60-5 are permissive rather than mandatory. This court has the legal authority, in the exercise of its unlimited and unreviewable discretion, to depart from these principles whenever the court elects to do so. Similarly, this court has the legal authority, in the exercise of its unlimited and unreviewable discretion, to engage in free-ranging appellate decision-making that extends significantly beyond the issues raised by counsel. The fact is that, in a civil case applying only state law, no one can say us nay.

It is, however, a long leap to infer from our unlimited and unreviewable judicial authority a basis for the exercise of our unlimited and unreviewable judicial discretion in the circumstances of this case. Apart from the fact that the state is a party and that considerable money is at stake, this case involves only the construction of an insurance contract. Contrary to many of the cases upon which the majority opinion relies, this case presents no issue of statutory construction and, therefore, cannot serve as a precedent that might guide other statutory claimants. The legal claims that the state raises are not unique; neither party has argued any novel or pressing issue of insurance law. The state does not assert that this insurance policy is so widely replicated that clarification of its coverage will inform the rights of significant numbers of similarly situated litigants. Finally, because the state is not judgment proof, this is not a case in which denial of insurance coverage will deprive the underlying litigants of recovery for whatever relief they may obtain in federal court.

II

The majority opinion’s substantive discussion, to my mind, is flawed because of its failure to take into account the state’s concession at trial. One should start, on appeal, with the proposition that the 1986-89 policy meant to exclude, and did exclude, any coverage for intentional torts, because of its policy exclusion for “any claim arising out of the willful violation of a penal statute or ordinance.” That point of departure would lend considerable credibility to the insurer’s argument that the policy defined an “occurrence” primarily as an “accident.” I infer from the majority opinion’s decision to overlook the state’s trial court concession that it, too, is unprepared to sustain its judgment if the concession were given full effect.

I disagree, therefore, with the majority opinion’s conclusion that, on the present record, because the insurer may have liability for other nonintentional torts, it must undertake the defense of state workers for whom such other torts allegedly are intertwined with intentional torts. If that is a correct construction of the contract, then no exclusion of intentional torts, no matter how exquisitely worded, would ever limit an insurer’s coverage obligation in any case in which the underlying complaint raised claims of nonintentional tort arising out of the same fact situation as the alleged intentional tort. I doubt the propriety of such a conclusion.

Finally, the majority opinion appears to construe the insurance contract as if, as a matter of public policy, disclaimers of insurance coverage for intentional torts were disfavored. I know of no authority for that proposition. In fact, our case law stands for the proposition that, in applying common-law principles in the absence of a statutory mandate, we will interpret insurance contracts to avoid indemnifying an insured for its own wilful misconduct. See Avis Rent A Car System, Inc. v. Liberty Mutual Ins. Co., 203 Conn. 667, 673-74, 526 A.2d 522 (1987); Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 285-87, 472 A.2d 306 (1984); Tedesco v. Maryland Casualty Co., 127 Conn. 533, 537, 18 A.2d 357 (1941) (“A policy which permitted an insured to recover from the insurer fines imposed for a violation of a criminal law would certainly be against public policy. ... If the language of the policy is reasonably open to two constructions, one of which would avoid such a result, that should be adopted.”).

This is not a case in which, in my view, we should stretch our case law and Practice Book rules to protect the insured. This insurance contract is not a contract of adhesion but one in which there was a real opportunity for negotiation. The insured is the state, not an innocent consumer. Reading insurance contracts carefully may well be tedious, but the state hardly can be heard to say that, before accepting the 1986-89 policy, it was foreclosed from closely examining the policy and/ or from comparing it, line by line, with its significantly broader predecessor. In light of the prevalence of civil actions under 42 U.S.C. § 1983, the state similarly cannot be heard to say that the importance of coverage for intentional torts was unforeseeable in 1986. The time to raise this coverage issue was at the negotiating table, not now on appeal.

In summary, in my view, the trial court conducted the proper analysis of the 1986-89 policy and came to the proper conclusion that the policy did not provide the coverage for which the state now argues. I would affirm its judgment.

Accordingly, I respectfully dissent.

       The ten underlying federal court actions were consolidated by the United States District Court on June 7, 1990. See In re State Police Litigation, 888 F. Sup. 1235 (D. Conn. 1995). The individual complaints in those actions allege that employees of the Connecticut state police department, while in the employ of that department, deprived the plaintiffs in the underlying actions of rights secured to them by the constitutions and laws of the United States and the state of Connecticut by illegally intercepting, recording, disclosing and otherwise using, without the knowledge or consent of the plaintiffs, all telephone calls made to, from, and within state police barracks by the plaintiffs and others, in violation of federal law and subsequently fraudulently concealing such wrongdoing. See In re State Police Litigation, 88 F.3d 111 (2d Cir. 1996); In re State Police Litigation, supra, 888 F. Sup. 1235.

       The plaintiff had appealed an aspect of the trial court judgment that is unrelated to the issues in this appeal. The issue appealed by the plaintiff was whether the trial court correctly had determined that the plaintiff was responsible for the entire cost of the defendants’ defense in the action brought by the Connecticut Criminal Defense Lawyers Association that was the subject of count one of the plaintiffs complaint. In that action, the plaintiff alleged that the defendants had engaged in illegal wiretapping over a twelve year period, however, the 1984-86 policy provided the defendants with insurance coverage for conduct occurring during only two of those twelve years. The plaintiff sought apportionment of the costs of the defendants’ defense between it and the defendants, claiming that it would be unfair to require it to pay for the entire defense under the circumstances. The trial court determined that the plaintiff was obligated to assume the entire cost of the defendants’ defense without the benefit of apportionment between it and the defendants. From that aspect of the trial court’s decision, the plaintiff appealed. Thereafter, the plaintiff withdrew its appeal.

       Counts three through ten of the complaint pertained to damages resulting from ads committed by the defendants during the 1986-89 policy period. Count eleven alleged that, in the event that the court should find that the plaintiff was obligated to provide the defendants with a defense in the underlying actions under the terms of the 1986-89 policy, a deductible would be applicable to each incident of misconduct. Whether a deductible applies is an issue that is not before us in this appeal.

       In its memorandum of decision on the plaintiffs motion for summary judgment, the trial court articulated the parties’ arguments as follows: “[The plaintiff] argues that it has no duty to defend the defendants in the underlying lawsuits because the allegations in the underlying complaints do not come within the coverage of either insurance policy. [The] [defendants claim that ‘the potential for liability, and not the language of the complaint, is what gives rise to a duty to defend’ and conceding that intentional behavior is not covered, [the] defendants maintain that since the federal court may make a finding of negligent behavior, which is covered by the policy, a duty to defend exists.” (Emphasis added.)

       Practice Book § 60-5 provides: “Review by the Court; Plain Error; Preservation of Claims
      “The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.
      “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court.
      “In jury trials, where there is a motion, argument, or offer of proof or evidence in the absence of the jury, whether during trial or before, pertaining to an issue that later arises in the presence of the jury, and counsel has fully complied with the requirements for preserving any objection or exception to the judge’s adverse ruling thereon in the absence of the jury, the matter shall be deemed to be distinctly raised at the trial for purposes of this rule without a further objection or exception provided that the grounds for such objection or exception, and the ruling thereon as previously articulated, remain the same.

        "If the court deems it necessary to the proper disposition of the cause, it may remand the case for a further articulation of the basis of the trial court’s factual findings or decision.
      "It is the responsibility of the appellant to provide an adequate record for review as provided in Section 61-10.”

       “Although there have been cases in which the interpretation of an insurance contract has rested on factual questions; see, e.g., Libero v. Lumbermens Mutual Casualty Co., 141 Conn. 574, 580, 108 A.2d 533 (1954); this is not such a case.” Flint v. Universal Machine Co., 238 Conn. 637, 643, 679 A.2d 929 (1996). In this case, as in Flint, the “only questions raised ... are whether the allegations set forth in [the] complaint triggered [the insurer’s] obligation to defend . . . [the] insured in the underlying action, and whether the [policy] exclusion is ambiguous. These issues present questions of law, which we review de novo.” Id.

       The plaintiff argues that in this case application of the rule that ambiguous provisions of a contract are interprel ed against the drafter would be inappropriate because the defendants’ were sophisticated purchasers and the rule was intended to benefit unsophisticated consumers. We disagree.
      The plaintiff has cited only one unreported Connecticut case that suggests that there may be situations where application of the rule that ambiguity in a policy is to be interpreted against the drafter might be inappropriate. In that case, Linemaster Switch Corp. v. Aetna Life & Casualty Corp., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV9103964325 (July 31, 1995) (15 Conn. L. Reptr. 223), the trial court was asked to interpret an insurance policy to determine if a duty to defend existed with respect to actions brought against the insured by the United States Environmental Prolection Agency and the Connedicut department of environmental protection under a new federal statute that created strict retroactive liability for past hazardous waste disposal activities. The court noted that, because the risk for which coverage had been claimed was not a risk that had been anticipated or even contemplated at the time when the policy was issued, and because both parties were sophisticated and of fairly equal bargaining power, the court might not automatically apply the rule that ambiguity in the policy must be interpreted against the insurer. Id., 226. The present case is easily distinguishable from Linemast&r Switch Corp., in that the peculiar circumstances on which the trial court based its reasoning in that case do not exist here. Rather, the policy in this case contains specific references to intentional torts. Therefore, we find no reason to deviate from the general rule that ambiguity in an insurance policy is to be interpreted against the drafter.

       The plaintiff also contends that it does not have a duty to defend because the underlying federal complaints contain claims for injunctive relief and class action relief, and the policy contains an exclusion for any action, claim or “suit” seeking injunctive relief or class action relief. Again, the fact that a demand for class action or injunctive relief is made in an action does not automatically relieve an insurer of its duty to defend. In determining the duty to defend, “courts do not examine only the pleaded word but the potential liability created by the suit. ... To restrict the defense obligation of the insurer to the precise language of the pleading . . . would create an anomaly for the insured . . . [because] the complainant in the third parly action drafts his complaint in the broadest terms .... In light of the likely overstatement of the complaint and of the plasticity of modem pleading, we should hardly designate the third party as the arbiter of the policy’s coverage.” (Citations omitted.) Gray v. Zurich Ins. Co., 65 Cal. 2d 263, 276, 419 P.2d 168 (1966). In addition to claims seeking injunctive and class action relief, the actions in this case also contain demands for monetary damages, and the plaintiffs in the underlying federal actions may prevail on their claims for monetary or other relief. Therefore, the broad duty to defend is not overcome by the fact that the complaints include claims for class action or injunctive relief.


source: Caselaw Access Project

author: NORCOTT, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. KERMIT FRANCIS
    (SC 15633)
    Callahan, C. J., and Borden, Berdon, Norcott and McDonald, Js.

      Argued May 27
    officially released August 18, 1998

      Mark Rademacher, assistant public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Dennis J. O’Connor, senior assistant state’s attorney, for the appellee (state).
   Opinion

NORCOTT, J.

The defendant, Kermit Francis, was convicted by a jury of murder in violation of General Statutes § 53a-54a (a), carrying a pistol without a permit in violation of General Statutes § 29-35, and altering or removing an identification mark on a pistol in violation of General Statutes § 29-36. The defendant appeals from the judgment of the trial court. He claims that the trial court improperly: (1) refused to allow him to introduce evidence that two key state’s witnesses were gang members, in violation of his constitutional rights to due process, to confrontation and to present a defense; (2) determined that the evidence was sufficient to support his conviction under § 29-36; (3) instructed the jury on the presumption set forth in § 29-36; and (4) instructed the jury on the intent element of murder. We affirm the judgment of the trial court with regard to the defendant’s first and fourth claims, we do not reach the defendant’s second claim, and we reverse the judgment of the trial court on the defendant’s third claim. Because we conclude that the trial court improperly instructed the jury regarding the presumption set forth in § 29-36, we remand the case for a new trial on the charge of altering or removing an identification mark on a pistol.

A jury reasonably could have found the following facts. On December 20, 1993, the defendant, along with Casey Wilcox, Andre Shirley and Corey Rosemond, were selling crack cocaine in the area of Wilcox’s residence at 88 Atwood Street in Hartford. The victim, Moses Barber, Jr., a regular customer, purchased drugs from the defendant. After making his purchase, he walked away. The victim later returned to Wilcox’s porch and engaged in an argument with the defendant concerning the drug sale. The victim and the defendant left the porch and the defendant proceeded up a dark driveway between two buildings directly across the street from Wilcox’s residence. The victim remained near the street. As they continued to argue, the defendant approached the victim and shot him. The victim died later that night as a result of a gunshot wound to his abdomen.

On December 21, 1993, Wilcox asked the defendant for his guns for the purpose of threatening an individual who had accused Wilcox of shooting the victim. The defendant went into the basement of a house on Atwood Street, and emerged with a handgun and rifle, which he gave to Wilcox. Wilcox, in turn, gave the weapons to Rosemond and instructed Rosemond to put the weapons in the trunk of a vehicle parked behind Wilcox’s residence. The next morning, Hartford police officers, armed with a search warrant, seized the weapons from the trunk of the vehicle and, thereafter, learned that the defendant did not have a permit to carry a pistol or revolver. Moreover, the police officers found that the serial number on the pistol had been ground off.

Thereafter, Wilcox, Shirley and Rosemond gave statements implicating the defendant in the murder, and a warrant was issued on December 23, 1993, for the defendant’s arrest. The defendant was arrested in New York in June, 1995. Additional facts will be discussed in the context of the defendant’s specific claims.

I

The defendant first claims that the trial court improperly limited his cross-examination of Wilcox, Shirley and Rosemond regarding the alleged gang membership of Wilcox and Rosemond, thus limiting the defendant’s ability to present a defense, and to confront and cross-examine these witnesses in violation of his due process rights and his right to confrontation as guaranteed by the federal and state constitutions. The defendant argues that he sought to introduce evidence of Wilcox’s and Rosemond’s gang membership for two purposes: (1) to establish that they were lying; and (2) to establish that they falsely had accused the defendant of murder as a result of a territorial dispute regarding who could sell drugs in the area of Wilcox’s residence. The state argues that the defendant had failed to establish a foundation for the admission of this evidence. In response, the defendant claims that a foundation is not necessary to introduce this evidence in order to establish that Wilcox and Rosemond were lying regarding their gang membership because evidence of untruthfulness is always admissible. He claims further that, although evidence of bias against the defendant requires some foundation, that foundation had been established. We conclude that this issue is not reviewable because the trial court did not make a ruling.

The following additional facts are necessary to our resolution of this issue. During the probable cause hearing, Rosemond and Wilcox testified that they were not members of a gang known as “20 Love.” In contrast, Shirley testified that Rosemond and Wilcox not only were members of the gang, but that Wilcox was actually the president. During the trial, prior to the testimony of these witnesses, the state made an oral motion in limine to prevent any cross-examination by the defendant of these witnesses regarding their membership in 20 Love on the ground that such testimony would not be relevant to any issue in the case and would exceed the scope of direct examination since the state did not intend to elicit this information on direct examination. The defendant, in opposition, sought to introduce such testimony for two distinct purposes: (1) to impeach the credibility of Rosemond and Wilcox, either by introducing Shirley’s testimony that they were gang members if they denied it, or by introducing their probable cause hearing testimony in which they had denied gang membership if they now admitted it; and (2) to establish the defense that members of 20 Love falsely had accused him of murdering the victim in retaliation for the defendant’s selling drugs in their territory.

The trial court deferred ruling on the state’s motion stating: “I can’t resolve this at this point. I want to hear the direct [examination of Rosemond], and then you’ll have the opportunity before you cross-examine. I may want to hear this out of the presence of the jury to see where you’re going with this.”

Following the state’s direct examination of Rosemond, the defendant, out of the presence of the jury, summarized his offer of proof relating to his proposed questioning regarding Rosemond’s gang membership. The defendant argued that this evidence was necessary to establish the credibility of Rosemond. The defendant expected Rosemond to testify that he was not a member of 20 Love. The defendant then would introduce Shirley’s prior testimony from the probable cause hearing that Rosemond was a gang member to impeach Rosemond’s credibility. This evidence would also establish that bad blood existed between Rosemond and the defendant as a result of the defendant’s encroachment onto 20 Love’s drug selling territory. The state responded that this evidence would be collateral, prejudicial and irrelevant. The court, in a preliminary ruling stated, “you’ve got to get some connection between [Rosemond’s] membership in the gang and some relevant issue.” In response, the defendant conceded that a connection had not yet been made between gang membership and any relevant issue because no evidence had yet been introduced establishing that either the defendant or anyone else had been selling drugs that evening. Therefore, there was no foundation for the defendant’s theory that he falsely had been implicated in this murder as a result of the witnesses’ bias against the defendant stemming from a drug “turf war.” The defendant conceded, “I won’t press that, Your Honor. I’ll wait until my next witness, and then we can proceed there." (Emphasis added.) The court and the state agreed, however, that the defendant could cross-examine Rosemond regarding drug selling activity that evening. Upon doing so, Rosemond denied that either Wilcox or the defendant were selling drugs that evening.

After the state’s direct examination of the next witness, Shirley, the defendant did not make an offer of proof regarding the issue of gang membership. Instead, at the end of his cross-examination of Shirley, the defendant asked Shirley whether he, Wilcox, Rosemond and the defendant were “in competition with one another [in the sale of drugs] right on the comer, and there’s no organization.” Shirley responded, “[n]o organization, what [do] you mean organization?” The defendant clarified the question by asking “are you aware of an organization called 20 Love?” At that point, the state objected, arguing that questions regarding gang membership exceeded the scope of the direct examination. After the jury was excused, the court stated: “I’ve not heard anything yet that [the defendant] . . . sold anything that evening in that area . . . , What has it got to do with 20 Love until some predicate, some basis for that has been laid out?” The defendant argued that the line of questioning regarding gang membership would become relevant after Wilcox had testified.

The court ruled that “on the basis of what has been offered so far . . . with this witness I’m going to sustain the objection of the state, and [the defendant’s attorney] will have the right to test that question again after the testimony of . . . Wilcox.” The court clarified that questioning regarding the gang membership of these witnesses might become relevant following Wilcox’s testimony if Wilcox were able to establish a connection between the defendant and the drug selling activity at Wilcox’s residence on the day of the victim’s death. The state objected to the court’s ruling, arguing that the defendant should be precluded from asking any questions at any time regarding gang membership or 20 Love. The state clarified that “I don’t have a problem with asking questions generally speaking about drug trafficking going on that day or in general. I do have a problem with the mentioning of 20 Love. . . . [A]s long as . . . mention of a gang or the entity known as 20 Love is kept out ... I would not have a problem with territoriality being explored. I just don’t think that it’s necessary to get the word gang or the name 20 Love [in]----”

The defendant accepted the state’s argument, stating: “Your Honor . . . taking up what [the state’s attorney] has been saying, his offer that I certainly am permitted to talk about the control of territories, etcetera . . . so long as I do not mention gang or 20 Love or any specific gang, I may explore that then, and hopefully I won’t mention any name. . . . I’m taking up the offer. I probably will do that, and I’m sure it will be all negative, and there will only be a few questions I’ll ask him.”

The defendant continued his cross-examination of Shirley, questioning him regarding drug selling territory. Shirley explained that he sold drugs at Wilcox’s residence but others could not do so “if they wasn’t from the neighborhood.” He further explained that in order to sell drugs at Wilcox’s residence, Wilcox’s permission was needed: “You had to be a friend of [Wilcox’s] to be there.” Moreover, he explained that, in addition to himself, Wilcox and Rosemond, the only other person who could sell drugs at Wilcox’s residence at that time was the defendant.

In his cross-examination of Wilcox, the last eyewitness to testify, the defendant did not ask any questions regarding Wilcox’s membership in a gang. The defendant did, however, question Wilcox regarding the issues of territory and the control of drug sales at his residence, to which Wilcox explained that only his friends could sell in that area. He acknowledged that “if some stranger, somebody [he] didn’t like came into the area, [he’d] say no, you can’t sell them here; this is my place.” He also testified that he, along with Rosemond, Shirley and the defendant, were selling drugs that evening. Moreover, he testified that he saw the victim purchase drugs from the defendant. After the defendant completed his cross-examination of Wilcox, he did not attempt to reexamine either Rosemond or Shirley on the issue of gang membership.

The defendant argues on appeal that the trial court violated his due process rights and his right to confrontation by ruling against him in his numerous attempts to question the witnesses regarding gang membership. The state argues that the defendant’s claims are not appealable because the court did not make a ruling on the matter. We agree with the state.

“It is elementary that to appeal from the ruling of a trial court there must first be a ruling. . . . [T]his court cannot review a nonexistent ruling.” (Citation omitted; internal quotation marks omitted.) State v. Kindrick, 30 Conn. App. 56, 60, 619 A.2d 1 (1993); see Biggs v. Warden, 26 Conn. App. 52, 57, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991) (court will not consider claimed errors that have not been raised and decided); see also General Statutes § 52-263 (right to appeal is from final judgment); State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983) (same).

The trial court had three opportunities to make a final ruling on the admissibility of evidence regarding gang membership of Wilcox and Rosemond: (1) following the state’s oral motion in limine; (2) following the state’s direct examination of Rosemond; and (3) following the defendant’s cross-examination of Shirley. Yet, the court refrained from doing so. At each point, the court allowed the defendant future opportunities to present additional evidence in order to establish the relevancy of questions relating to gang membership. Following the state’s motion in limine, the court stated: “I can’t resolve this at this point. I want to hear the direct, and then you’ll have the opportunity before you cross-examine.” Following the state’s direct examination of Rosemond, the court instructed the defendant that he had to establish “some connection between [Rosemond’s] membership in the gang and some relevant issue” in order to cross-examine Rosemond about his involvement in 20 Love. Lastly, following the defendant’s cross-examination of Shirley, the court sustained the state’s objection to the defendant’s questions regarding 20 Love, but gave the defendant the right to ask such questions again after Wilcox’s testimony, in response to the defendant’s explanation that the relevancy of gang membership would be apparent at that point.

As in State v. Barletta, 238 Conn. 313, 332, 680 A.2d 1284 (1996), the trial court in the present case “concluded only that the defendant had not as yet laid the proper foundation for such cross-examination; at no time did the court indicate that the defendant was prohibited from renewing that line of questioning at an appropriate time. . . . [T]he ruling of the trial court was a preliminary one, subject to reconsideration if and when the defendant established the relevance of the testimony that he sought to adduce . . . .” (Emphasis in original.) Significantly, the defendant never sought follow-up questioning of any of these witnesses and, presumably, chose to abandon this line of inquiry. See id. Accordingly, because the trial court had ruled only preliminarily and allowed the defendant the opportunity to renew this line of questioning once its relevancy had been established, we conclude that this issue is not reviewable.

II

The defendant next claims that the trial court improperly instructed the jury regarding the presumption contained within § 29-36. Section 29-36 provides in relevant part: “The possession of any pistol . . . upon which any identifying mark, number or name has been altered, removed or obliterated shall be prima facie evidence that the person owning or in possession of such pistol . . . has altered, removed or obliterated the same.” The defendant argues that the court’s instructions created an unconstitutional mandatory presumption relieving the state of its burden of establishing the elements of this offense beyond a reasonable doubt. The defendant also argues that even if the court’s instructions created only a permissive inference, such permissive inference was unconstitutionally applied because the altered pistol was found in the possession of a third party, Wilcox, and not in the defendant’s possession.

The trial court’s instructions to the jury on § 29-36 provided in relevant part: “The state charges [the defendant] with the crime of altering or removing an identification mark in violation of our law. It further alleges that on an unknown date prior to December 20, 1993, at a time before 7:07 p.m. [the defendant] altered, removed or obliterated the maker’s number or other mark of identification on a pistol in violation of our law.

“For you to find the defendant guilty of this charge the state must prove beyond a reasonable doubt that the defendant altered, removed or obliterated the maker’s number or other mark of identification on the pistol

“For the purpose of determining whether the state has proven this essential element beyond a reasonable doubt, the possession of a pistol upon which any identifying mark or number has been altered, removed or obliterated, it shall be prima facie evidence that the person owning or in possession of the pistol has altered, removed or obliterated the same.

“The phrase prima facie evidence means evidence which if credited is sufficient to establish the fact or facts which it is adduced to prove. . . .

“There are two elements then to prove this charge of altering or removing an identification mark, and each must be proved beyond a reasonable doubt. First, that the defendant was either the owner or possessor of the pistol . . . and two, prior to December 20, 1993, during such ownership or possession of the pistol that the pistol was found to have its maker’s number or other mark of identification removed, obliterated or altered.”

The state concedes that, although the defendant failed to raise this claim at trial, it is reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). See State v. Gerardi, 237 Conn. 348, 355-56, 677 A.2d 937 (1996). Moreover, the state concedes that this instruction misled the jury because it interpreted the inference in § 29-36 to be mandatory and, therefore, that the defendant is entitled to a new trial on this issue.

This court previously has reasoned that “[t]he Due Process Clause of the Fourteenth Amendment protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. . . . This bedrock, axiomatic and elementary [constitutional] principle . . . prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime. . . .

“A mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts. A permissive inference suggests to the jury that a possible conclusion may be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion.

“Mandatory presumptions . . . violate the Due Process Clause if they relieve the State of the burden of persuasion on an element of an offense. . . . A permissive inference does not relieve the State of its burden of persuasion because it still requires the State to convince the jury that the suggested conclusion should be inferred based on the predicate facts proved.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Gerardi, supra, 237 Conn. 356-57. This court previously has stated that presumptions will be construed as permissive inferences in order to preserve them in a constitutional manner. See id., 358.

We agree that the trial court’s instructions to the jury on the offense of altering or removing a pistol’s identification mark, viewed in their entirety, presented the statutory inference as mandatory, thereby misleading the jury. See State v. Hines, 243 Conn. 796, 818-19, 709 A.2d 522 (1998) (“ ‘a jury instruction is to be examined in its entirety, and . . . the test to be applied is whether the charge as a whole presents the case to the jury so that no injustice will be done’ ”); State v. Ortiz, 217 Conn. 648, 667, 588 A.2d 127 (1991) (challenge to jury instruction requires review to determine whether it is reasonably possible that jury was misled). The trial court, in essence, mandated that the juiy find the defendant guilty if it found that the defendant either owned or possessed the pistol and that during such ownership or possession the pistol’s identification mark was removed, obliterated or altered. The court did not give the jury the option to reach a different conclusion if these predicate facts were proven. Consequently, the defendant is entitled to a new trial on this issue with instructions that this inference is permissive and not mandatory.

The defendant also claims that even if we were to construe the inference in § 29-36 as permissive, it is nonetheless unconstitutional because the altered pistol was not found in his possession. We disagree. When reviewing the constitutionality of a permissive inference, we consider whether “under the facts of the case, there is no rational way the trier could make the connection permitted by the inference . . . [f]or only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.” (Internal quotation marks omitted.) State v. Gerardi, supra, 237 Conn. 358. In the present case, a jury rationally and reasonably could connect the defendant’s possession of the pistol with its alteration.

Ill

The defendant’s final claim is that the trial court improperly instructed the jury regarding the intent element of murder in violation of his fundamental due process rights under the federal and state constitutions to have the state prove each element of an offense charged against him. Specifically, the defendant argues that the trial court erroneously stated that intent could be established by proof that the defendant had the intent to shoot the victim instead of the intent to kill the victim. The defendant contends that a portion of the definition of intent improperly permitted the jury to find him guilty of murder if it found that he had the intent to engage in the conduct of firing his weapon. This claim, which the defendant raises under State v. Golding, supra, 213 Conn. 239-40, or alternatively, pursuant to the plain error doctrine, is unavailing.

The defendant’s claim is foreclosed by our decision in State v. Prioleau, 235 Conn. 274, 321-22, 664 A.2d 743 (1995), wherein we concluded that an instruction, almost identical to that at issue here, did not warrant reversal. In State v. Prioleau, supra, 322, the trial court instructed the jury on the entire statutory definition of intent, referring to both intent to cause a result, death, and intent to engage in proscribed conduct, shooting. Yet, we concluded that the instruction, viewed in its entirety, was not misleading because the trial court “repeatedly instructed the jury that in order to find the defendant guilty of murder, it first had to find that he had intended to cause the death of the victim.” Id. The present case is indistinguishable because, although the trial court provided the entire statutory definition of intent in its instruction, it also repeatedly instructed that in order to find the defendant guilty of murder, the jury had to conclude that the defendant had intended to cause the death of the victim. See State v. Austin, 244 Conn. 226, 232-37, 710 A.2d 732 (1998) (no error where trial court read entire statutory definition of intent in murder trial because entire instruction was such that jury would not be misled); State v. Jaynes, 36 Conn. App. 417, 426-31, 650 A.2d 1261 (1994), cert. denied, 233 Conn. 908, 658 A.2d 980 (1995) (where similar instruction given by trial court, Appellate Court concluded no constitutional violation).

The judgment is reversed with respect to the conviction of altering or removing an identification mark on a pistol and the case is remanded for a new trial on that charge; the judgment is affirmed with respect to the conviction of murder and carrying a pistol without a permit.

In this opinion the other justices concurred.

       General Statutes § 53a-54a provides in relevant part: “Murder, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime. . . .”

       General Statutes § 29-35 provides in relevant part: “Carrying of pistol or revolver without permit prohibited. Exceptions, (a) No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. . . .
      “(b) The holder of a permit issued pursuant to section 29-28 shall carry such permit on his person while carrying such pistol or revolver.”

       General Statutes § 29-36 provides: “Altering or removing identification mark. No person shall alter, remove or obliterate the name of any maker or model or any maker's number or other mark of identification on any pistol or revolver. The possession of any pistol or revolver upon which any identifying mark, number or name has been altered, removed or obliterated shall be prima facie evidence that the person owning or in possession of such pistol or revolver has altered, removed or obliterated the same.”

       The defendant appealed directly to this court pursuant to General Statutes § 51-199 (b), which provides in relevant part: “The following matters shall be taken directly to the Supreme Court ... (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony . . . for which the maximum sentence which may be imposed exceeds twenty years . . . .” Section 51-199 (b) has since been amended by Public Ads 1997, No. 97-178, § 2.

       The trial court sentenced the defendant to sixty years imprisonment on the murder conviction and five years imprisonment on the remaining two counts, to be served concurrently, for a total effective sentence of sixty years imprisonment.

       It is not clear from the record who owned or lived in this house.

       It is not clear from the record who owned this vehicle.

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
      Article first, § 8, of the constitution of Connecticut, as amended by article twenty-nine of the amendments, provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against, him; [and] to have compulsory process to obtain witnesses in his behalf . . . .”
      “Because the defendant has failed to provide any independent analysis under the state constitution, we limit our review to the federal constitution.”
        State v. Porter, 241 Conn. 57, 133 n.77, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998).

       The defendant argues that no foundation is required to introduce extrinsic evidence in order to demonstrate that the witness is “lying under oath.” He argues that despite having failed to establish the necessary predicate of a relationship between gang membership and the murder, the trial court should have permitted him to cross-examine Rosemond and Wilcox about their membership in the 20 Love gang. If they denied membership, he could then introduce Shirley’s testimony that they were members. If they admitted membership, he could introduce their probable cause hearing testimony to contradict their testimony. Either way, he argues, he should have been permitted to introduce evidence to contradict their sworn testimony and thereby impeach their credibility. This claim is based on an erroneous understanding of the rules of evidence.
      “As a general rule, extrinsic evidence of a prior inconsistent statement may not be admitted to impeach the testimony of a witness on a collateral matter. State v. Colton, 227 Conn. 231, 247, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996). Thus, on cross-examination, a witness’ answer regarding a collateral matter is conclusive and cannot be contradicted later by extrinsic evidence. Id., 248; C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 7.24.4, p. 211; 1 C. McCormick, Evidence (4th Ed. 1992) § 49, pp. 182-83. Extrinsic evidence of a prior inconsistent statement may be admitted, however, to impeach a witness’ testimony on a noncoUateral matter. State v. Colton, supra, 247; State v. Burns, 173 Conn. 317, 327, 377 A.2d 1082 (1977); 1 C. McCormick, supra, § 36, p. 118 and § 49, p. 183. A matter is not collateral if it is relevant to a material issue in the case apart from its tendency to contradict the witness. . . . The determination of whether a matter is relevant to a material issue or is collateral generally rests within the sound discretion of the trial court. State
        v. Colton, supra, 247; State v. Burns, supra, 327-28.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Valentine, 240 Conn. 395, 403, 692 A.2d 727 (1997).
      The trial court properly deferred the defendant’s inquiry into the witnesses’ involvement with 20 Love until he could establish a nexus that would render such an inquiry relevant. If the defendant had established that the defendant was “set up” because of a controversy regarding the sale of drugs in front of Wilcox’s house, the matter would have been noncollateral. The defendant’s theory, however, was belied by testimony that the defendant was a friend of Wilcox and was permitted to sell drugs outside Wilcox’s home.

       Wilcox’s testimony at the probable cause hearing provided in relevant part:
      “[Defense Attorney William Collins]: OK. Now, are you a member, or were you at that time, a member of any recognized gang?
      “[Wilcox]: No.”
      Rosemond’s testimony at the probable cause hearing provided in relevant part:
      “[Collins]: And you and [Wilcox] were members of a gang, weren’t you?
      “[Rosemond]: No.
      “Q. The — what is it — a gang known as ‘20 Love’? No?
      “A. Could you repeat the question?
      “Q. You and he were members of a gang that you referred to as ‘20 Love’?
      “A. No.
      “Q. Never?
      “A. No.”

       Shirley’s testimony at the probable cause hearing provided in relevant part:
      “[Defense Attorney William Collins]: All right. And you and [Wilcox], are you both in the same club? Do you have a club?
      “[Shirley]: No.
      “Q. You don’t have an organization that you call, ‘20 Love’?
      “A. Nope.

        “Q. No? Have you ever heard that phrase?
      “A. Yes.
      “Q. Is that some — is there such an organization as ‘20 Love’?
      “A. Yes.
      “Q. But you’re not a member?
      “A. Nope.
      “Q. Never were a member?
      “A. Nope.
      “Q. And as far as you know, [Wilcox] was never a member? . . .
      “A. Yes.
      “Q. Yes, what? He was, or he wasn’t?
      “A. He was.
      “Q. He was a member?
      “A. Yes.
      “Q. He was actually the president of it, wasn’t he, at one time?
      “A. I guess so. That’s what he said. I’m not sure. I wasn’t a member.
      “Q. I see. Was he a member, as far as you knew on December 20, 1993?
      “A. Yes.
      “Q. I see. And what does that — being a member of 20 Love, what does that mean? What [do] members do?
      “A. I’m not a member. I wouldn’t know.
      * * *
      “Q. OK. Incidentally, is [Rosemond] also a member of 20 Love?
      “A. I think he is.
      “Q. Yes. And he was at that time, right?
      “A. Yes.”

       The state did not object to questioning regarding whether Rosemond witnessed any drug sales that evening, or if Rosemond had feelings of bias toward the defendant. The state’s objection rested solely on questioning regarding Rosemond’s gang membership, especially in 20 Love.

       In contrast, Shirley testified that he, Rosemond and Wilcox all sold drugs that evening. Although Shirley testified that the defendant was generally a drug seller, he did not testify that he witnessed the defendant sell drugs that evening to anyone, including the victim.

       See footnote 13 of this opinion.

       In State v. Golding, supra, 213 Conn. 239-40, this court concluded that "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.)

       We, therefore, also agree with the defendant’s claim that “the jury should not have been told that it could rely exclusively on [the presumption in § 29-36] to convict [the defendant]” and that the court’s instruction that possession was “prima facie evidence” of alteration was misleading and improper.
      To the extent that State v. Strickland, 42 Conn. App. 768, 775, 682 A.2d 521 (1996), rev’d on other grounds, 243 Conn. 339, 703 A.2d 109 (1997), held to the contrary, it is disapproved.

       “Although we generally evaluate the sufficiency of the evidence claim first because, were the [state] to prevail on that claim, the [defendant] would not be entitled to a new trial ... we need not do so in this case.” (Citation omitted.) Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 242 n.31, 694 A.2d 1319 (1997). In light of our interpretation of the presumption in § 29-36 as permissive and not mandatory, we conclude that the jury reached its verdict based on an improper instruction concerning the force and weight of this presumption. “Consequently, although the standard governing our review of sufficiency of the evidence is to evaluate the evidence construing it in the light most favorable to sustaining the facts expressly and impliedly found by the jury ... we cannot presume the sufficiency of the evidence on which the jury based its verdict in light of the improper instruction.” (Citation omitted.) Id. We cannot presume that the jury would have reached the same conclusion had it been properly instructed on the law. Accordingly, we need not reach the defendant’s sufficiency claim. See id. (defendants’ sufficiency claim not reached because court concluded that jury reached verdict based on improper instruction concerning parties’ respective burdens of proof).

       We reject the defendant’s claim that the statutory presumption set forth in § 29-36 was inapplicable because the state did not present direct evidence that the defendant altered, removed or obliterated the pistol’s identifying mark. The defendant argues that the presumption does not apply if the altered pistol is found in the possession of a third party. We disagree. Circumstantial evidence is as probative of guilt as direct evidence; see State v. Henning, 220 Conn. 417, 420-21, 599 A.2d 1065 (1991); State v. John, 210 Conn. 652, 660, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); and it is the function of the jury to weigh this evidence. Moreover, § 29-36 does not, by its language, limit application of the inference to situations in which the accused is in actual possession of a pistol. See State v. Alfonso, 3 Conn. App. 225, 226-27, 486 A.2d 1136 (1985) (defendant convicted under § 29-36 where altered gun found in cinder block windowsill of second floor of building).

       See footnote 8 of this opinion.

       The trial court’s instructions to the jury provided in relevant part: “In the first count [the defendant] is charged with murder. The state alleges that on or about December 20, 1993, at about 7:07 p.m. at or near 87-89 Atwood Street, Hartford, Connecticut, [the defendant] with intent to cause the death of [the victim] did cause the death of [the victim] by shooting him with a handgun in violation of our statute involving murder, [§] 53a-54a.
      “Insofar as it applies in this case the statute reads as follows: A person is guilty of murder when with intent to cause the death of another person he causes the death of such person. There are two elements, each of which the state must prove beyond a reasonable doubt in order to sustain a conviction in this case. First, that the defendant had the intent to cause the death of another person, that is, [the victim]; secondly, that acting with that intent he caused the death of that person. . . .
      “The first element is that the defendant had the intent to cause the death of [the victim]. Our statute provides that a person acts intentionally with respect to a result or to conduct described by the statute defining an offense when his conscious objective is to cause such result or to engage in such conduct. . . .
      “[A] person’s intention may be inferred from his conduct. You may infer from the fact that the accused engaged in conduct that he intended to engage in that conduct. This inference is not a necessary one, that is, you are not required to infer intent from the accused’s conduct, but it is an inference that you may draw if you find it is a reasonable and logical inference.
      “So, intent then is a mental process which ordinarily can be proved only by circumstantial evidence. An intent to cause death may be inferred from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of ammunition used, the type of wound inflicted, the distance between the parties at the time of the shooting and the events leading up to and immediately following the death of the victim. I remind you that the state has the burden of proving beyond a reasonable doubt that the defendant intended to kill [the victim],
      “The second element is that the defendant acting with the intent to cause the death of [the victim] caused his death. . . .
      “To summarize then, in order for you to convict the defendant of the crime of murder, the first count in this information, the state must have proved beyond a reasonable doubt the following elements: One, that the defendant had the intent to cause the death of another person, that being [the victim], and two, acting with that intent he caused the death of [the victim].”

       See footnote 15 of this opinion.

       Practice Book § 60-5 provides in relevant part: “The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.
      “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”