text:
    THERESA HIGGINS, ADMINISTRATRIX (ESTATE OF STEPHANIE FREEMAN), ET AL. v. HERBERT KARP, EXECUTOR (ESTATE OF ETHEL KARP), ET AL. HERBERT KARP, EXECUTOR (ESTATE OF ETHEL KARP) v. DRZISLAV CORIC, ADMINISTRATOR (ESTATE OF ROBERT FREEMAN)
    (SC 15435)
    (SC 15441)
    Callahan, C. J., and Borden, Berdon, Norcott, Katz, Palmer and McDonald, Js.

      Argued November 4, 1997
    officially released January 20, 1998

      Wesley W. Horton, with whom were Susan M. Cormier and Paul A. Lange, for the appellant (defendant Drzislav Coric, as administrator of the estate of Robert Freeman).

      David T. Ryan, with whom were Stephen F. Traub, Eric P. Smith and, on the brief, Daniel F. Sullivan and Bradford S. Babbitt, for the appellees (plaintiffs).
   Opinion

NORCOTT, J.

The dispositive issue in this appeal is whether the trial court, in the hearing required by our remand in Higgins v. Karp, 239 Conn. 802, 811, 687 A.2d 539 (1997), properly excluded additional evidence on the issue of whether good cause existed to set aside defaults against Drzislav Coric, the administrator of the estate of Robert Freeman (hereafter referred to as the defendant), for failure to plead. The trial court concluded that: (1) our decision in Higgins mandated that the trial court, on remand, was limited to the record as it existed at the time of the first hearing on the defendant’s motions to set aside the defaults; and (2) based on its review of that record, the defendant failed to demonstrate that good cause existed to set aside the defaults. On appeal, the defendant claims that the trial court misinterpreted our remand in Higgins to prohibit the introduction of additional evidence, and that its failure to exercise its discretion pursuant to Practice Book § 376 was improper. The defendant further claims that the evidence was relevant and that its exclusion was harmful. We agree with the defendant and reverse the judgment of the trial court.

This is the second time that we have considered this case. The underlying facts are set out fully in our previous opinion; see Higgins v. Karp, supra, 239 Conn. 804-807; but we briefly summarize the facts relevant to the issues raised in this appeal. This litigation arises out of the April 12, 1993 crash of a Piper aircraft en route from Groton, Connecticut, to Cortland, New York, in which the pilot, Robert Freeman, his daughter, Stephanie Freeman, and Ethel Karp were killed. On February 19, 1994, the plaintiff Theresa Higgins, the mother of Stephanie Freeman, brought an action individually 45 and as administratrix of her daughter’s estate against, inter alia, the defendant alleging negligence in the death of her daughter. On May 17, 1994, the plaintiff Herbert Karp, the husband of Ethel Karp, also brought an action against the defendant.

In their respective actions against the defendant, the plaintiffs moved for defaults for failure to plead. Karp was granted a default against the defendant on July 25, 1994, and Higgins was granted a default on August 26, 1994. The plaintiffs filed individual claims for a hearing in damages on March 13 and 15, 1995. In April, 1995, attorney Paul Lange filed an appearance on behalf of the estate of Robert Freeman, in lieu of attorney Thomas Wilson.

“On May 19, 1995, [the defendant] moved, pursuant to Practice Book § 376, to set aside the two defaults entered against him. The trial court denied [the defendant’s] motions and, on June 9, 1996, the court issued a memorandum of decision addressing the reasons for the denial.” Higgins v. Karp, supra, 239 Conn. 806. The defendant appealed from the judgment of the trial court. Id., 807.

In. Higgins, we concluded that, because the trial court had considered the actions of the insurer of the aircraft, a nonparty, it “exceeded the scope of its discretion by focusing on factors irrelevant to whether there was good cause to set aside the defaults.” Id., 811. Accordingly, we reversed the judgment of the trial court, vacated the orders denying the motions to set aside the defaults, and remanded the cases to the trial court “to determine, on the basis of factors other than the conduct of [the insurer of the aircraft], whether good cause exists to set aside the defaults entered against [the defendant].” (Emphasis added.) Id.

Pursuant to our remand, the trial court held a hearing to reconsider the defendant’s motions to set aside the defaults. At that hearing, the trial court considered only the record that had been before the original trial court. That record included: (1) a memorandum of law filed by Lange, the defense counsel; (2) an affidavit by Wilson, the former defense counsel, which set forth the reasons why he had not answered the complaints brought against the defendant in a timely fashion; and (3) a memorandum of law, in opposition, filed by the plaintiffs’ counsel. Wilson stated in the affidavit that the failure to plead had been the result of difficulty defending the case because of: (1) the death of Robert Freeman; (2) the insolvency of Freeman’s estate, which had hindered Wilson’s ability to conduct an investigation of the crash and thereby prevented him from formulating adequate defenses; (3) the complexity of the cases; (4) the refusal by the insurer of the aircraft to appear and defend; and (5) his inability to obtain the National Transportation Safety Board report until late 1994.

The defendant sought to offer into evidence the following three discovery documents that had existed at the time of the initial hearing, but that had not been included in the original record: (1) Higgins’ request for production dated May 13,1994; (2) Higgins’ interrogatories dated May 13, 1994; and (3) the defendant’s responses to Higgins’ interrogatories dated August 31, 1994. The defendant argued that these documents were relevant to the determination of whether good cause had existed because they demonstrated his due diligence. The defendant also sought to introduce an excerpt from the transcript of the oral argument that took place before this court in the first appeal in which attorney David Ryan, the counsel for Karp, stated that the defendant’s delay in pleading had not caused his client any prejudice. The defendant argued that this excerpt should be admitted because prejudice was a relevant factor for the trial court to consider.

The trial court sustained the plaintiffs’ objection to the introduction of all four documents on the basis that “the Supreme Court has mandated this trial court to look at what was before the trial court on that date, and only what was before the trial court on that date to make a determination as to whether or not the motion to reopen should have, in fact, been granted as opposed to denied.” Thereafter, the trial court denied the defendant’s motions to set aside the defaults. This appeal followed.

The defendant argues that the trial court improperly excluded the proffered evidence because our decision in Higgins did not limit the trial court, on remand, to the evidence that was before the original court, and the proffered evidence was relevant to the determination of whether to set aside the defaults. The defendant further claims that the exclusion of the evidence was harmful. We agree.

We first address whether the trial court properly construed our remand. The plaintiffs argue that the trial court correctly interpreted our decision in Higgins to require that, on remand, its determination of whether good cause existed to set aside the defaults was to be based solely on what was before the original trial court. We disagree with the plaintiffs’ interpretation of our remand.

“Well established principles govern further proceedings after a remand by this court. In carrying out a mandate of this court, the trial court is limited to the specific direction of the mandate as interpreted in light of the opinion. . . . This is the guiding principle that the trial court must observe. ... It is the duty of the trial court on remand to comply strictly with the mandate of the appellate court according to its true intent and meaning. . . . The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein. . . . Halpern v. Board of Education, 231 Conn. 308, 311, 649 A.2d 534 (1994).” (Emphasis in original; internal quotation marks omitted.) Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 65, 689 A.2d 1097 (1997). “We have rejected efforts to construe our remand orders so narrowly as to prohibit a trial court from considering matters relevant to the issues upon which further proceedings are ordered that may not have been envisioned at the time of the remand. Blaker v. Planning & Zoning Commission, 219 Conn. 139, 592 A.2d 155 (1991). So long as these matters are not extraneous to the issues and purposes of the remand, they may be brought into the remand hearing. Cioffoletti v. Planning & Zoning Commission, 220 Conn. 362, 369, 599 A.2d 9 (1991).” (Internal quotation marks omitted.) Halpern v. Board of Education, supra, 313.

Applying these principles to the present case, we cannot agree with the plaintiffs that our decision in Higgins limited the trial court, on remand, to the record as it existed at the time of the original hearing. We instructed the trial court to determine whether good cause exists, without considering irrelevant factors such as the conduct of nonparties. The plaintiffs claim that our statement that the trial court “should have, evaluate [d] the merits of the motions according to the reasons that [defense counsel] put forth on [the defendant’s] behalf, namely, the obstacles raised by Robert Freeman’s death and the insolvency of Freeman’s estate”; Higgins v. Karp, supra, 239 Conn. 811; supports their argument that the trial court was supposed to consider only that evidence. Our reference to the evidence that was before the initial court was not intended to circumscribe the evidence that could be considered by the trial court on remand. Indeed, it would be incongruous for us to say, on the one hand, that the trial court cannot consider the conduct of the insurer of the aircraft because it is an irrelevant factor and, on the other hand, that the trial court is precluded from admitting additional, relevant evidence.

Moreover, it is well established that “ ‘[t]he determination of whether to set aside [a] default is within the discretion of the trial court.’ ” Id., 808. Our remand was not intended to curtail the exercise of that discretion. “While it is normally true that this court will refrain from interfering with a trial court’s exercise of discretion . . . this presupposes that the trial court did in fact exercise its discretion. [Discretion imports something more than leeway in decision-making. ... It means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” (Emphasis in original; internal quotation marks omitted.) State v. Colton, 234 Conn. 683, 703, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996).

It is apparent from this record that the trial court failed to exercise its discretion. “Where, as here, the trial court is properly called upon to exercise its discretion, its failure to do so is error.” State v. Martin, 201 Conn. 74, 88, 513 A.2d 116 (1986); see also State v. Lee, 229 Conn. 60, 73-74, 640 A.2d 553 (1994) (“[i]n the discretionary realm, it is improper for the trial court to fail to exercise its discretion”).

The defendant next contends that the exclusion of the evidence was improper because it was relevant to the determination of whether to set aside the defaults. We agree.

It is axiomatic that “ ‘[e]vidence is admissible only if it is relevant.’ ” Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 569, 657 A.2d 212 (1995). “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. ... All that is required is that the evidence tend to support a relevant fact even to a slight degree . . . .” (Emphasis in original; internal quotation marks omitted.) Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 259-60, 694 A.2d 1319 (1997). “ ‘Evidence is admitted, not because it is shown to be competent, but because it is not shown to be incompetent. No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason and judicial experience. . . .’ ” (Citations omitted.) Williams Ford, Inc. v. Hartford Courant Co., supra, 569.

With these principles in mind, we review the evidence that the defendant sought to have admitted. The defendant argues that the three excluded discovery documents would be relevant to the trial court’s determination of whether good cause existed because these documents would show that “Wilson exercised some diligence in that he answered the . . . interrogatories in Higgins shortly after the pleading defaults were entered . . . [and] clearly was not ignoring the files.” The defendant argues that the relevance of the three discovery documents is related to earlier correspondence from Wilson, which the plaintiffs had offered at the original hearing. In a letter addressed to both plaintiffs dated August 4, 1994, Wilson stated that the estate of Robert Freeman was insolvent and that, in his opinion, the insurer of the aircraft had wrongfully denied coverage for Freeman. Wilson further advised the plaintiffs that he had informed the insurer that he had not filed an answer because he did not want to prejudice any of the insurer’s rights with respect to any answer or defenses it might wish to file. He enclosed a copy of the insurer’s response denying coverage. Because the insurer had denied his request to appear and defend, Wilson inquired whether either or both of the plaintiffs wished to implead the insurer.

We are unpersuaded by the plaintiffs’ argument that the documents are irrelevant to the determination of whether to set aside the defaults. The three discovery documents directly pertain to the defendant’s diligence and explanation for the failure to plead. We therefore agree with the defendant that the trial court improperly excluded the documents.

Our analysis does not end here, however, because we next must determine whether the exclusion of the proffered evidence was harmful, ha the absence of a showing that the evidence would have affected the final result, its exclusion is harmless. “It is a fundamental rule of appellate review of evidentiary rulings that if error is not of constitutional dimensions, an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.

. . . Accordingly, we must determine whether [an] improper evidentiary ruling is likely to have affected the result of the trial. State v. Brown, 199 Conn. 14, 25, 505 A.2d 690 (1986). Gateway Co. v. DiNoia, [232 Conn. 223, 239, 654 A.2d 342 (1995)].” (Citation omitted; internal quotation marks omitted.) Sadloski v. Manchester, 235 Conn. 637, 645, 668 A.2d 1314 (1995).

The plaintiffs contend that even if the evidence was relevant, its exclusion was not harmful because the trial court found the defendant’s reasons for failing to plead “ ‘uncompelling.’ ” The plaintiffs claim that, in view of this assessment and the marginal relevancy of the evidence, the admission of the proffered evidence was not likely to have affected the result of the hearing.

The defendant counters that the exclusion of the discovery documents was harmful because “[i]f the trial court had known that the defendant had responded to the interrogatories on August 31,1994, perhaps it would have understood why the correspondence was significant and why Wilson answered the discovery request without . . . answering the complaints. The fact that [the] discovery answers were made might therefore have convinced the trial court to give more weight to the reasons given in Wilson’s affidavit for not pleading.”

The proffered evidence is particularly relevant in light of the trial court’s emphasis on the length of the delay. The trial court stated “that failing to do anything for ten months after the defaults were entered and two months after the actions were claimed to the hearing in damages list [was] egregious . . . .” When read cumulatively, the discovery documents and Wilson’s correspondence arguably lend credence to the defendant’s claim that the failure to plead was neither a delaying tactic nor deliberate dilatory conduct. Wilson was in communication with the plaintiffs about the status of the estate, the refusal of the insurer to defend, and the reason for not answering the complaints. Furthermore, Wilson answered Higgins’ interrogatories in a responsive, arguably substantive, manner.

This evidence, which directly bore on the question of whether the defendant had been dilatory, coupled with the trial court’s statement that “[the] reasons offered by the defendant pose a hard case,” persuades us that the exclusion of this additional evidence may well have affected the trial court’s conclusion that good cause did not exist to set aside the defaults. Accordingly, we conclude that the exclusion of the three discovery documents was harmful.

Notwithstanding, the plaintiffs insist that the discovery requests and the defendant’s response related only to Higgins’ case and cannot affect the default granted against the defendant in the companion case of Karp v. Coric, 239 Conn. 802, 687 A.2d 539 (1997). We are unpersuaded. The defendant faced the same circumstances in both cases. The discovery documents, when combined with Wilson’s letter, are relevant to the defendant’s failure to plead in both cases.

The defendant next argues that the transcript of oral argument before this court in Higgins was relevant because the trial court may consider prejudice in determining whether to set aside defaults. We agree.

As we noted previously, “ ‘[the] determination of whether to set aside [a] default is within the discretion of the trial court’ Higgins v. Karp, supra, 239 Conn. 808; and will not be disturbed unless that discretion has been abused or where injustice will result. In the exercise of its discretion, the trial court may consider not only the presence of “mistake, accident, inadvertence, misfortune or other reasonable cause”; Munch v. Willametz, 156 Conn. 6, 10, 238 A.2d 424 (1968); factors such as “[t]he seriousness of the default, its duration, the reasons for it and the degree of contumacy involved”; E. Stephenson, Connecticut Civil Procedure (3d Ed. 1997) § 96 (f), p. 288; but also, the totality of the circumstances, including whether the delay has caused prejudice to the nondefaulting party.

Our conclusion that the exercise of discretion by the trial court pursuant to Practice Book § 376 does not preclude the consideration of prejudice to the nondefaulting party is consistent with the similar construction of rule 55 (c) of the Federal Rules of Civil Procedure by the federal courts. Rule 55 (c) provides: “For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60 (b).” Because rule 55 (c), like Practice Book § 376, does not define the term “good cause,” federal courts have established criteria to assess whether a party should be relieved from a default. A “widely accepted factor” in this determination is “whether setting aside the default would prejudice the adversary . . . .” Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993); see, e.g., Action S.A. v. Marc Rich & Co., 951 F.2d 504, 507 (2d Cir. 1991), cert. denied, 503 U.S. 1006, 112 S. Ct. 1763, 118 L. Ed. 2d 425 (1992); In re Men’s Sportswear, Inc., 834 F.2d 1134, 1138 (2d Cir. 1987); Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981). We conclude, therefore, that the statement in oral argument before this court regarding prejudice as a result of the defendant’s delay in failing to plead is relevant evidence to the trial court’s determination of whether to set aside the defaults.

We further conclude, on the basis of our review of the record, that the defendant has sustained his burden of showing that the exclusion of the transcript was harmful. The trial court conceded that the case was difficult, that “the plaintiffs were not particularly diligent in moving the case forward,” and that the decisive factor was the delay. The court stated that even though “this court finds the reasons proffered by the defendant uncompelling . . . [t]his court would be inclined to open the defaults against the defendant were it not for the length of time that the defendant failed to attend to the defaults.” We cannot agree with the plaintiffs that the impact of the delay and whether it resulted in prejudice to the nondefaulting patty might not have affected the final result.

Because the trial court in the present case did not exercise its discretion and did not consider additional relevant evidence in its determination of whether good cause exists to set aside the defaults, it must do so on remand.

The judgment is reversed and the case is remanded to the trial court to consider the defendant’s motions to set aside the defaults entered against him.

In this opinion the other justices concurred.

       In Higgins v. Karp, supra, 239 Conn. 807, the defendant’s first appeal to this court, he claimed that the trial court had abused its discretion when it: (1) denied his motions to set aside the defaults; (2) sustained the plaintiff Theresa Higgins’ objections to his notices of defenses, which notices were filed more than ten days after he had received notice of the entry of judgment of default; (3) denied his request to apply New York law rather than Connecticut law to the case; and (4) awarded Higgins prejudgment interest under General Statutes § 52-192a. Because we agreed with his first claim, which was dispositive of the appeal, we did not reach the remaining issues. We retained jurisdiction, however, for the purposes of appellate review of the other issues on appeal. Id., 811.

       Practice Book § 376 provides in relevant part: “A motion to set aside a default where no judgment has been rendered may be granted by the court for good cause shown upon such terms as it may impose. As part of its order the court may extend the time for filing pleadings or disclosure in favor of a party who has not been negligent. . . .”

       The trial court struck Higgins’ individual action for loss of filial consortium against the defendant. Higgins v. Karp, supra, 239 Conn. 807.

       “[Higgins’] initial complaint also named as defendants E.G. & H., Inc., the owner of the aircraft, and Gary M. Bertman, one of the directors and stockholders of E.G. & H., Inc. The claims against these two defendants, however, were subsequently withdrawn on March 15, 1995.” Higgins v. Karp, supra, 239 Conn. 804 n.1. Higgins also filed claims against Karp, which she subsequently withdrew on May 13,1996. Id., 807 n.8. Accordingly, Coric is the only defendant remaining.

       These cases were subsequently consolidated by the trial court. Hereafter, we refer to Higgins and Kaip collectively as the plaintiffs.

       The defendant appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       In accordance with General Statutes § 51-183c, we ordered that the matter be assigned to ajudge other than the judge who originally had decided the motions.

       The defendant argues that Ryan, when making this statement, was speaking on behalf of both plaintiffs. The specific portion of the oral argument before this court that the defendant sought to have admitted as evidence provided in part:
      “Mr. Smith [Counsel for Higgins]: . . . Mr. Ryan, since the issues are collective to both of our cases, can address the balance of our brief and answer the court’s questions. . . .
      ❖ * *
      “The Court: The lapse, the time delay in tiling the motion to open the defaults. How were you prejudiced?
      “Mr. Ryan [Counsel for Karp]: We weren’t prejudiced during that period of time; we were getting our case prepared. We didn’t know if the next morning’s mail might bring in an answer.
      “Experts were waiting in the wings on liability to be able to, who would have been called to court to testify and have opinions as to the cause of this aircraft crashing. That wasn’t needed in the end because the case went to trial under a default.
      “The Court: So, the delay caused you no prejudice in the case. Is that correct?
      “Mr. Ryan: Well, in preparing it? That’s correct but that’s not the standard that you have to decide it on.”

       Notwithstanding our conclusion, we express no opinion with respect to the trial court’s subsequent decision on remand regarding the defendant’s motions to set aside the defaults.

       See footnote 8 of this opinion.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THOMAS E. MANGINES, EXECUTOR (ESTATE OF ALFRED J. JOLSON) ET AL. v. LILLIAN MCCARTHY ERMISCH, EXECUTRIX (ESTATE OF CATHERINE L. MCCARTHY) ET AL.
    (SC 15787)
    Callahan, C. J., and Borden, Berdon, Norcott and Palmer, Js.
    Argued December 9, 1997
    officially released January 20, 1998

      Thomas E. Mangines, with whom were Francis D. Burke and, on the brief, Brian A. Mangines, for the appellants (plaintiffs).

      Mark W. Dost, for the appellees (defendants).
   Opinion

PER CURIAM.

This appeal arises out of a dispute concerning the meaning and intent of the last will and testament of Catherine L. McCarthy of Southbury. At issue is the proper interpretation of article sixth of her will, which bequeaths McCarthy’s residual estate “to the Bishop of Reykiavik, (Iceland), who is presently the Most Reverend Alfred J. Jolson, S.J., c/o Jesuit Mission Bureau, St. Joseph University, 5600 City Avenue, Philadelphia, Pennsylvania 19131, or his successor, for Church needs.” Jolson’s family and McCarthy’s family had been friends and Jolson had retained contact with McCarthy throughout his distinguished career as a Jesuit priest. Jolson was appointed bishop of Reykjavik, Iceland, by Pope John Paul II in 1988. He died on March 10, 1994, having survived McCarthy, who died on January 14, 1993, by almost fourteen months. Jolson’s will made multiple bequests to church-related organizations in anticipation of the receipt of the residue of McCarthy’s estate, which, at present, approximates two million dollars. McCarthy’s estate had not been fully probated prior to Jolson’s death, and, consequently, the property passing under the residual clause of McCarthy’s will never had been distributed to him.

The plaintiffs, the coexecutors of Jolson’s estate, contend that the residual bequest vested in Jolson personally at the time of McCarthy’s death and, because he survived McCarthy, the property passing under the residual clause of her will should be distributed to his estate. The defendants, the coexecutors of McCarthy’s estate, argue that the residual bequest was to the bishop of Reykjavik, as trustee of a charitable trust, and that McCarthy’s residual estate vested not in Jolson personally, but in the bishop of Reykjavik, in trust, to be distributed to whomever the bishop of Reykjavik might be at the time McCarthy’s estate is distributed.

The plaintiffs, by petition to the Probate Court of Southbuiy, sought a partial distribution of McCarthy’s residual estate to Jolson’s estate. That petition was denied and the plaintiffs appealed to the Superior Court. General Statutes § 45a-186. That court concluded, as did the Probate Court, that McCarthy, by article sixth, had intended to create a charitable trust in the bishop of Reykjavik in his official capacity as bishop, and had not intended to devise and bequeath the residuary to Jolson personally. The court, therefore, rendered judgment dismissing the plaintiffs’ appeal. The plaintiffs appealed from the trial court’s judgment to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). The sole issue on appeal is whether the trial court was correct in its conclusion that title to the residuary of McCarthy’s estate passed to the current bishop of Reykjavik, as trustee of a charitable trust, and not to Jolson in his individual capacity.

Our examination of the record and our review of the briefs and arguments of the parties on appeal persuades us that the judgment of the trial court should be affirmed. The central issue of the appropriate interpretation of the will was resolved properly in the trial court’s thoughtful and comprehensive memorandum of decision. Mangines v. Ermisch, 45 Conn. Sup. 197, 705 A.2d 1025 (1997). Because that memorandum of decision fully addresses the arguments raised in the present appeal, we adopt it as a proper statement of the facts and the applicable law on those issues. It would serve no useful purpose for us to repeat the discussion contained therein. See Molnar v. Administrator, Unemployment Compensation Act, 239 Conn. 233, 235, 685 A.2d 1107 (1996); Val-Pak of Central Connecticut North, Inc. v. Commissioner of Revenue Services, 235 Conn. 737, 740, 669 A.2d 1211 (1996).

The judgment is affirmed.

       The will contains two provisions entitled article sixth. Only the first article sixth is relevant here.

       McCarthy’s estate was being probated in Southbury, her town of residence. Jolson’s estate was being probated in Fairfield, his town of residence.

       General Statutes § 45a-186 provides in relevant part: “(a) Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the Superior Court in accordance with subsection (b) of this section. . . .
      “(b) Any such appeal shall be filed in the superior court for the judicial district in which such court of probate is located . . . .”


author: BERDON, J. MCDONALD, J.,

text:
    SILLIA INNOCENT v. ST. JOSEPH’S MEDICAL CENTER ET AL.
    (SC 15667)
    Borden, Berdon, Katz, Palmer and McDonald, Js.
    Argued November 6, 1997
    officially released January 27, 1998

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

      Matthias J. DeAngelo, with whom, on the brief, was Kevin M. Blake, for the appellee (named defendant).
   Opinion

BERDON, J.

The principal issue in this appeal is whether the time period during which a claimant returns to work with medical restrictions as a result of a compensable iry ury, at the same rate of pay she received prior to that injury, shall count toward the calculation of timely notice for purposes of transfer to the defendant second injury fund (fund) under General Statutes (Rev. to 1987) § 31-349 (a). We conclude that because the term “disability” in § 31-349 (a) refers to a claimant’s degree of medical impairment, rather than inability to work or loss of earning capacity, the period during which the claimant returned to work with medical restrictions shall be included in the calculation of whether timely notice was given to the fund for purposes of transfer under § 31-349 (a).

The parties stipulated to the underlying facts in this case. On April 12, 1988, the plaintiff, Sillia Innocent (claimant), suffered a compensable injury to her right leg while working for the named defendant, St. Joseph’s Medical Center (medical center). The claimant suffered from a preexisting degenerative condition, which made her compensable injury materially and substantially greater than it would have been without the preexisting condition. As a result of that injury, the claimant was temporarily totally disabled from April 13, 1988, until September 18, 1989, during which time she received workers’ compensation benefits. Effective September 19,1989, the claimant was allowed by her treating physician to perform light duty work. The claimant then returned to work at the medical center on September 19, 1989, subject to that medical restriction. From September 19, 1989, to April 1, 1990, although she was restricted to the type of work she physically could perform, the claimant worked the same number of hours per week and received the same pay as she did prior to sustaining her injury on April 12, 1988. The claimant reached maximum medical improvement on April 1, 1990, and was determined to have a 25 percent permanent partial disability to the right lower extremity.

Section 31-349 (a), provides that, as a condition precedent to an employer’s transfer of liability for an employee’s permanent disability to the fund, the employer must furnish notice of intent to transfer to the custodian of the fund ninety days prior to the expiration of the first 104 weeks of the claimant’s disability. Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 393, 618 A.2d 1340 (1993). The medical center issued its notice to the fund on or about April 12,1990. The fund rejected the medical center’s notice of intent to transfer its liability for the claimant’s permanent partial disability payments, claiming that the notice was untimely under § 31-349 (a).

A formal hearing was held before the workers’ compensation commissioner (commissioner) on June 20, 1995. The commissioner, solely on the basis of the stipulation entered into by the parties, upheld the timeliness of the medical center’s notice of intent to transfer liability to the fund. The commissioner determined that because the claimant had returned to work at her former position as a housekeeper at her regular rate of pay and was not entitled to any workers’ compensation benefits between September 19,1989, and April 1,1990, that time period would be excluded when determining whether timely notice was given under § 31-349 (a). Pursuant to General Statutes (Rev. to 1987) § 31-301 (a), the fund appealed to the compensation review board (board), which affirmed the commissioner’s decision. The board concluded that there was sufficient evidence in the record to support the commissioner’s determination that the claimant, for the period during which she had returned to work, was not disabled for purposes of determining the time period by which notice of transfer to the fund must be given. The fund appealed from the decision of the board to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

The fund argues that the medical center’s notice was untimely because the claimant’s period of light duty employment from September 18, 1989, through April 1, 1990, should be counted in determining the 104 week period under § 31-349 (a). The fund contends that all medically documented periods of disability count toward the calculation of timely notice under § 31-349 (a), without regard to whether a claimant is entitled to benefits or suffers any wage loss associated therewith. Under this interpretation, the notice for the claimant’s injury was due on or before January 9, 1990, ninety days prior to the expiration of the 104 week period on April 9, 1990. The medical center argues that its notice to the fund was timely because the 104 week period in § 31-349 (a) does not include the time period in which a claimant returns to work at the same rate of pay and for the same number of hours as he or she did prior to a compensable injury. Application of this interpretation of § 31-349 (a) would extend the deadline for notice to the fund in this case to July 22, 1990, rendering the medical center’s April 12, 1990 notice timely. We agree with the fund that notice was untimely.

The inteipretation urged upon us by the medical center violates a long-standing rule of statutory construction that this court has specifically applied to the Workers’ Compensation Act (act), General Statutes § 31-275 et seq. “In construing the act . . . this court makes every part operative and harmonious with every other part insofar as is possible. . . . Weinberg v. ARA Vending Co., 223 Conn. 336, 341, 612 A.2d 1203 (1992). In addition, the statute must be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987).” (Internal quotation marks omitted.) Williams v. Best Cleaners, Inc., 237 Conn. 490, 499, 677 A.2d 1356 (1996). Therefore, the meaning of the term disability, where practical, should be applied consistently throughout the act. Id.

We agree with the fund that, under the recent decisions in Vaillancourt v. New Britain Machine/Litton, supra, 224 Conn. 382, Six v. Thomas O’Connor & Co., 235 Conn. 790, 669 A.2d 1214 (1996), and Williams v. Best Cleaners, Inc., supra, 237 Conn. 490, the rate of pay received by the claimant and the number of hours worked upon her return to work are not determinative of the time period of her disability under § 31-349 (a). Rather, the determinative factor as to whether the time period is to be included in calculating the 104 week period of disability that triggers the date by which the employer must furnish notice to the fund, is whether the claimant is medically impaired as a result of his or her work-related injury.

In Vaillancourt, this court held that “the phrase ‘one-hundred-four-week period’ [in § 31-349 (a)] refers to the first one hundred four weeks of the claimant’s disability, not to the number of weeks the claimant’s employer has paid out-of-pocket benefits.” Vaillancourt v. New Britain Machine/Litton, supra, 224 Conn. 393. Although in Six, the claimant acknowledged in a signed agreement that he was not entitled to temporary partial benefits during a nine month period in which he returned to work with medical limitations; Six v. Thomas O’Connor & Co., supra, 235 Conn. 794 n.5; we held that the medical evidence offered at the hearing, including the physician’s decision to release the claimant to light duty work with “ ‘limitations of no repetitive knee bending activities’ ” supported the commissioner’s conclusion that the claimant was disabled during the period he returned to work. Id., 800 n.12. If there was any question left unresolved relative to the meaning of disabled with respect to the notice provision in § 31-349 (a), it was put to rest by our decision in Williams, in which we held that “[f]or purposes of § 31-349, a claimant’s ‘disability’ is to be evaluated, not in terms of loss of earning capacity, but, rather, in terms of the claimant’s medical impairment.” Williams v. Best Cleaners, Inc., supra, 237 Conn. 492.

The medical center claims that Williams is not relevant to this appeal because the claimant in that case would have been eligible for compensation under the act for his permanent partial disability, whereas the claimant in this appeal was not eligible for any workers’ compensation benefits when she returned to work. The medical center contends that the claimant in this case was not disabled under any sense of the term in the act during the time period she returned to work with medical restrictions because: (1) she was still employable, and thus, was not totally disabled within the meaning of General Statutes (Rev. to 1987) § 31-307; (2) she had not yet reached maximum medical improvement and, thus, was not permanently disabled within the meaning of General Statutes (Rev. to 1987) § 31-308 (b); and (3) she was earning the same wages she had earned before her injury and, thus, was not temporarily disabled within the meaning of § 31-308 (a). In sum, the medical center argues that, unlike the claimant in Williams, the claimant in this case was not entitled to any workers’ compensation benefits during the period she returned to work with medical restrictions.

The medical center’s argument ignores the fact that in Williams, we held that, even though the term disability is “susceptible of two meanings — physical impairment and loss of earning capacity”; Williams v. Best Cleaners, Inc., supra, 237 Conn. 498; “for purposes of § 31-349, ‘disability’ refers to a claimant’s degree of medical impairment.” Id. Indeed, just recently, in Kelley v. New England R. Construction Co., 45 Conn. App. 448, 454, 696 A.2d 1047 (1997), the Appellate Court determined that even though a claimant had agreed not to seek workers’ compensation benefits for a three month period during which he had been authorized to return to work, he was disabled for purposes of § 31-349 (a) because numerous medical limitations were placed on the type of work he could perform during that period. Therefore, the Appellate Court held that the three month period during which the claimant agreed not to seek workers’ compensation benefits counted toward the calculation of timely notice under § 31-349 (a). Id.

We recognize that the calculation of the date that notice of intent to transfer liability to the fund is due must be determined by the commissioner on the basis of all of the evidence placed before him. “[T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . The conclusions drawn by him [or her] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Citation omitted; internal quotation marks omitted.) Six v. Thomas O’Connor & Co., supra, 235 Conn. 798-99. The commissioner, however, concluded that the claimant had provided timely notice solely on the basis of the facts stipulated to by the parties. We conclude that the commissioner’s finding that timely notice was given because the claimant was not disabled when she returned to work at full pay, with medical restrictions based upon her compensable injury, was an incorrect application of the law.

The decision of the board is reversed and the case is remanded to the board with direction to reverse the decision of the commissioner.

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

MCDONALD, J.,

dissenting. I disagree.

General Statutes (Rev. to 1987) § 31-349 (a) provides that an employer must notify the second injury fund (fund) ninety days before the end of a 104 week period for which the employer is responsible for payment of disability benefits to its employee that the employer seeks to transfer its responsibility to the fund. “Section 31-349 provides for shared liability for disability benefits . . . compensation.” Davis v. Norwich, 232 Conn. 311, 318, 654 A.2d 1221 (1995). It is only after the same 104 week period during which the employer is responsible for the payment of disability benefits that the responsibility is transferrable to the fund. It is an axiom of statutory construction that the term “the one-hundred-four-week period” in § 31-349 refers to the same period of responsibility throughout the statute. See Stamford Ridgeway Associates v. Board of Representatives, 214 Conn. 407, 431, 572 A.2d 951 (1990); State ex rel. Hyde v. Dowe, 129 Conn. 266, 271, 28 A.2d 12 (1942).

In this case, the workers’ compensation commissioner found that the named defendant, St. Joseph’s Medical Center (employer), was not responsible for the payment of disability benefits for 104 weeks at the time notice was given to the fund since the plaintiff, Sillia Innocent (employee), was not entitled to disability benefits from the employer for over six months prior to that notice although she was injured more than 104 weeks before the notice. The majority does not refute that finding. During that time, the employee had returned to her job, which was restricted to light duty work, at full pay. This was good for the employee, good for the employer and good for the fund. If the employee is not entitled to disability benefits, it is difficult to comprehend how the employer is responsible for paying any benefits during that time.

Accordingly, I respectfully dissent.

       Prior to July, 1991, the fund was designated as the second injury and compensation assurance fund. See Public Acts 1991, No. 91-207.

       General Statutes (Rev. to 1987) § 31-349 (a) provides in pertinent part: “The fact that an employee has suffered previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury, nor preclude compensation for death resulting therefrom. If an employee who has previously incurred, by accidental injury, disease or congenital causes, total or partial loss of, or loss of use of, one hand, one arm, one foot or one eye, or who has other permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone, he shall receive compensation for the entire amount of disability, including total disability, less any compensation benefits payable orpaid with respect to the previous disability, and necessary medical care, as elsewhere provided in this chapter, notwithstanding the fact that part of such disability was due to prior accidental injury, disease or congenital causes. The employer by whom the employee is employed at the time of the injury, or his insurance carrier, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. As a condition precedent to the liability of the second injury fund, the employer or his insurance carrier shall, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case and shall furnish to said custodian a copy

        of the agreement or award together with all information purporting to support his claim as to the liability of the second injury fund, and shall make available to the custodian all medical reports as the custodian shall desire. Failure on the part of the employer or the carrier to comply does not relieve the employer or carrier of its obligation to continue furnishing benefits under the provisions of this chapter. In the event the custodian shall reject the claim of the employer and its insurer, the question shall be submitted to the commissioner having jurisdiction, as promptly as possible, and the employer or carrier shall continue furnishing benefits until the outcome is finally decided, and if the employer or carrier prevails all payments made beyond the one-hundred-four-week period shall be reimbursed to the employer or carrier by the second injury fund. After the employer or its insurer has completed the payment for the one-hundred-four-week period, he shall file with the commissioner having jurisdiction, and with the custodian of the second injury fund, a form indicating that all compensation and medical bills have been paid for the one-hundred-four-week period, and indicating thereon the date the custodian was notified of the pending case. Thereafter all responsibility for compensation and medical treatment shall be with the custodian of the second injury fund. . . .” (Emphasis added.)

       Prior to July, 1991, the board was designated as the compensation review division. See Public Acts 1991, No. 91-339, § 18.

       In Williams v. Best Cleaners, Inc., supra, 237 Conn. 495, the commissioner determined that the claimant, who suffered 50 percent impairment of his respiratory capacity after reaching maximum medical improvement, was totally disabled because he was unemployable.

       General Statutes (Rev. to 1987) § 31-307 provides in pertinent part: “If any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of his average weekly earnings at the time of the injury . . . .”

       General Statutes (Rev. to 1987) § 31-308 (b) provides in pertinent part: “With respect to the following-described injuries the compensation, in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation, shall be sixty-six and two-thirds per cent of the average weekly earnings of the injured employee, but in no case more than the maximum weekly benefit rate set forth in section 31-309, or less than twenty dollars weekly ... (3) for the loss of one leg at or above the knee, or the complete and permanent loss of the use of one leg . . . .”

       General Statutes (Rev. to 1987) § 31-308 (a) provides in pertinent part: “If any injury for which compensation is provided under the provisions of this chapter results in partial incapacity, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury and the amount he is able to earn after such injury . . . .”