author: Glass, J.

text:
    Middlesex Mutual Assurance Company v. Donald F. Walsh, Sr., Administrator (Estate of Donald F. Walsh, Jr.)
    (14127)
    Peters, C. J., Shea, Callahan, Glass, Covello, Hull and Borden, Js.

      Argued December 4, 1990
    decision released May 14, 1991

      Charles A. Deluca, with whom, on the brief, was Holly K. Dustin, for the appellant-appellee (plaintiff).

      Susan M. Cormier, with whom were Wesley W. Horton and Melvin L. Bloomenthal, for the appelleeappellant (defendant).
   Glass, J.

This is an appeal by the plaintiff, Middle-sex Mutual Assurance Company (Middlesex) from the judgment of the Superior Court confirming a $275,000 uninsured motorist arbitration award in favor of the defendant, Donald F. Walsh, Sr. (Walsh), the administrator of the estate of his son, Donald F. Walsh, Jr. (Donald), and a cross appeal by Walsh from the court’s ruling regarding his entitlement to interest on the award. On the appeal, Middlesex claims that the arbitration panel and the trial court improperly determined that: (1) Donald was covered as a “resident of the household” of Walsh within the meaning of the terms of the automobile liability insurance policy issued to Walsh by Middlesex Mutual Automobile, a division of Middlesex; (2) statements made by Walsh on his application for the policy did not constitute material misrepresentations; and (3) the doctrine of estoppel did not bar Walsh from asserting that Donald was a resident of his household as a basis for recovery under the policy. On the cross appeal, Walsh raises the sole claim that the court improperly determined that he was entitled to recover interest on the award only from the date of the judgment confirming the award and not from the earlier date of the award. We affirm the judgment on the appeal, and on the cross appeal, we vacate the judgment and remand the case for further proceedings regarding Walsh’s entitlement to interest on the award.

The facts are as follows. While walking across River Street in Bridgeport in the early morning hours of November 2, 1987, Donald was fatally injured by a motor vehicle operated by Steven Rivera,, also known as Steven Raslavsky. Rivera had recently stolen the vehicle, and neither he nor the vehicle was insured. Thereafter, Rivera was charged with the crime of murder, but pleaded nolo contendere to manslaughter in the first degree.

As administrator of Donald’s estate, Walsh filed a claim under his policy with Middlesex to recover uninsured motorist benefits for the death of Donald. Pursuant to General Statutes § 38-175c (a) (l), the claim was submitted to compulsory arbitration before a panel of three arbitrators. The panel, one arbitrator dissenting, found in favor of Walsh and awarded $275,000 to Donald’s estate on April 3,1989. Middlesex then moved to vacate the award in the Superior Court pursuant to General Statutes § 52-418 (a) (4), and Walsh moved to confirm the award pursuant to General Statutes § 52-417. On November 27, 1989, the trial court confirmed the award, and in a subsequent articulation of its decision, ruled that Walsh was entitled to recover interest on the award from the date of the judgment confirming the award rather than from the date of the award as claimed by Walsh. Thereafter, Middlesex appealed to the Appellate Court from the judgment confirming the award and Walsh cross appealed from the court’s ruling concerning interest on the award. We transferred the appeal and the cross appeal to this court pursuant to Practice Book § 4023.

I

Middlesex first claims that the arbitration panel and the trial court should not have found that Donald was covered under the policy as a “resident of the household” of Walsh. After reviewing the record of the arbitration proceedings provided by the parties, the court ruled that “substantial evidence” supported the arbitrators’ determination that Donald was a resident of Walsh’s household.

Middlesex’ challenge to the ruling focuses upon the inferences drawn by the court from the facts pertaining to Donald’s residence. Specifically, Middlesex argues that the court “overlooked, misapplied, ignored and gave an improper effect” to certain statements made by Donald to the authorities at medical institutions and to the police indicating that he lived at places other than Walsh’s household, or that he was homeless. Middlesex contends that these statements express Donald’s belief that he was not a resident of Walsh’s household, and thus “point to the sole conclusion that he did not reside at [Walsh’s] home.” The court’s contrary conclusion, according to Middlesex, rested improperly upon “unsupported speculation that [Donald] was delusional on the numerous occasions when he gave his address (or lack of one) to third parties,” the testimony of Donald’s family that Middlesex characterizes as “conclusory in nature and based more on opinion than fact,” and various objective factors that Middlesex claims do not conclusively establish that Donald was a resident of Walsh’s household.

Essentially, Middlesex urges us to fashion a new analysis for the determination of whether a person is a resident of a particular household that would lend controlling significance, to the exclusion of other objective factors, to the intent of the person as to where he or she resides. Our prior decisions on the issue of household residence do not support such a restricted analysis. In Griffith v. Security Ins. Co., 167 Conn. 450, 454, 356 A.2d 94 (1975), for example, a case involving uninsured motorist coverage of an alleged household resident under the terms of a policy virtually identical to those at issue here, we construed the unambiguous phrase “resident of the same household” in its common and ordinary sense as defined in Webster’s Third New International Dictionary: “ ‘those who dwell under the same roof and compose a family: a domestic establishment; specif: a social unit comprised of those living together in the same dwelling place.’ ” In accordance with the two primary elements that emerge from this definition, we considered in Griffith whether the facts were sufficient to establish that the father who claimed to be a resident of his son’s household had a close, family-type relationship with the inhabitants of that household, and, in addition, that he actually lived in the household. Id., 455-57.

While we found it relevant in the latter respect that the father had testified that he lived in a different place; id., 457; we did not suggest that his intent as implied from his statements was dispositive evidence that he was not a resident of his son’s household. Rather, we focused primarily upon the objective factors relevant to the dual considerations noted above, including the frequency of the father’s contact with the inhabitants of his son’s household, that he stayed overnight and ate meals there, that he maintained a separate apartment and kept the bulk of his personal belongings, personal and business records and received mail at his apartment address, and that he used the address of his apartment for formal purposes such as voting, motor vehicle registration and paying income tax. Id., 455-57. We considered, moreover, the statements of other witnesses regarding their perception of where the father lived. Id., 457. The ultimate determination as to whether the father was a resident of his son’s household therefore rested upon our evaluation of a conglomeration of factors. See also Rathbun v. Aetna Casualty & Surety Co., 144 Conn. 165, 169, 128 A.2d 327 (1956).

Furthermore, aside from the possibility that Donald’s statements regarding where he lived may have been delusional, we do not agree with Middlesex that his intent evidenced by his statements, or that evidenced by the statements of any other alleged household resident, should control the outcome of the residence determination. Such an approach would inappropriately transform the residence inquiry into a mere weighing of contradictory expressions of intent, thereby diminishing the significance of the objective factors that we have previously found indicative of household residence. See Griffith v. Security Ins. Co., supra, 455-57; Rathbun v. Aetna Casualty & Surety Co., supra. Certainly, had Donald’s statements unanimously expressed his belief that he lived in Walsh’s household, Middle-sex would not favor the narrow analysis it now urges us to undertake. In neither case would it be appropriate to attach controlling significance to such expressions of intent.

We therefore adhere to the approach to the issue of household residence outlined in Griffith, that is, the statements expressing the intent of a claimed resident as to where he or she lives are merely one factor among many to be considered in determining household residence. Applying the foregoing principles to the facts of this case, we conclude that the court properly determined that the arbitrators were possessed of substantial evidence to support their determination that Donald was a resident of Walsh’s household. See Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 660-61, 591 A.2d 101 (1991).

The record reveals that Donald had suffered from chronic schizophrenia since the early 1970s. As a consequence, he was hospitalized for varying periods from the time that his illness first manifested itself until his death. Those of Donald’s siblings who lived at Walsh’s household testified that Donald, their oldest brother, was an integral part of Walsh’s “close-knit” family notwithstanding his illness and frequent hospitalizations. His sister testified that after he became ill, “it was Pier] turn to take care of him.” As noted by the court, moreover, Donald “spent a great number of his days and nights during the years prior to his death at his parents’ home, listening to music, playing his guitar, writing poetry, sometimes taking long walks and visiting his brothers and sisters. There is no doubt that he visited and stayed overnight with friends and of course he was institutionalized many times, but he always came home eventually. The family members who testified were unanimous in saying that he was welcome at the home and that is where he lived, and that he did not live anywhere else.”

In addition to Donald’s evidently close relationship with the inhabitants of Walsh’s household, the court noted that a variety of objective factors indicated that he actually lived in the household. For example, “[h]e had his own bedroom at the house and no one else slept in that room. His clothes were kept in a chest of drawers in the house, and he had other personal possessions which always remained there.” Compare Griffith v. Security Ins. Co., supra. According to his family members, Donald never moved his belongings out of Walsh’s house even when visiting friends, staying in shelters and recuperative halfway houses or simply wandering. Compare Rathbun v. Aetna Casualty & Surety Co., supra, 169. He received mail at the Walsh address, including bills, medical group information, community center agendas, college alumni magazines and reports, letters and birthday and Christmas cards. Compare Griffith v. Security Ins. Co., supra. Donald’s social security check, his only source of income, was mailed to the Walsh address in care of his mother, who deposited, cashed and disbursed the proceeds to him as necessary. In addition, he was registered to vote at Walsh’s address. Compare id.

Against the above evidence, the court weighed Donald’s statements to the authorities at medical institutions and to the police indicating that he lived in places other than the Walsh household. There was additional evidence, however, that Donald had identified himself to a police officer as Robert Hood, also known as Robin Hood, with no address but the forest, had given the wrong birth date to medical authorities, and, although unemployed and without a vocation, had described himself to medical authorities as a “freelance writer.” Members of his family testified that Donald was known to fabricate stories, and “really was in a fantasy land.” In light of this evidence, the court reasonably attributed Donald’s statements to his frequent “delusionary state.”

Furthermore, while Donald’s mother testified that Donald had been most lucid when released from medical institutions after regimented treatment, and on several of such occasions he had given his address of discharge as one other than the Walsh address, the court may well have concluded that these statements merely expressed Donald’s desire to be independent and to live on his own. Donald’s mother testified that one of the long-term goals of Donald’s treatment was his ultimate maintenance of an independent living situation, and that he had at times responded favorably to her suggestions that “maybe some time we can get you an apartment.” Nonetheless, there was no evidence that Donald ever took permanent measures to achieve this goal; compare Rathbun v. Aetna Casualty & Surety Co., supra; or that he was capable, either financially or emotionally, of establishing and maintaining a household separate from that of his parents. See Row v. United Services Automobile Assn., 474 So. 2d 348, 352 (Fla. App. 1985). In view of all of the evidence adduced at the arbitration hearing, therefore, we cannot say that the trial court improperly concluded that despite Donald’s periodic wanderings and statements to the contrary, substantial evidence supported the arbitrators’ determination that he was a resident of Walsh’s household. See Chmielewski v. Aetna Casualty & Surety Co., supra.

II

Middlesex next claims that Walsh’s statements in response to two questions on his application for automobile insurance constituted material misrepresentations that voided the policy, thereby defeating Walsh’s claim to recovery under the policy. The questions and Walsh’s respective answers are as follows: (1) “List all children in the household (Names and dates of birth),” to which Walsh responded by placing a dash mark in the space designated for his answer; and (2) “Has any operator in the household had his/her license revoked or suspended during the past 5 years,” to which Walsh responded by marking the “No” box designated for his answer.

Before addressing whether the arbitration panel and the court properly determined that Walsh’s answers did not constitute material misrepresentations, we must consider Middlesex’s preliminary claim that material “misrepresentations in an insurance application invalidate the policy even when innocently made.” Commentators note that “[tjhere is a conflict of authority as to the effect to be given a misrepresentation of material fact when innocently made, that is, where the insured made misstatements because of ignorance, mistake, or negligence, but in fact exercised good faith.” 7 G. Couch, Cyclopedia of Insurance Law (2d Ed.) § 35:119. “In those jurisdictions in which emphasis is placed upon the moral character of the insured’s conduct, it is generally held that the contract of insurance is not voidable because of innocent misrepresentations. In those in which prime attention is focused upon the fact that the insurer has been misled, it is generally held that the contract is voidable because of the misrepresentation, however innocent.” Id., § 35:118. As support for its claim that Connecticut falls within the group of jurisdictions that follow the latter rule, Middlesex relies upon two cases involving alleged misrepresentations in life insurance applications. See Guariglia v. John Hancock Mutual Life Ins. Co., 139 Conn. 54, 57, 90 A.2d 162 (1952); Kelly v. John Hancock Mutual Life Ins. Co., 131 Conn. 106, 110, 38 A.2d 176 (1944); see also Jeffe v. Monarch Life Ins. Co., 123 F. Sup. 173, 175 (D. Conn. 1954).

In our most recent decision in the life insurance context, however, we stated that “a misrepresentation material to the risk that is knowingly made by a proposed insured will defeat recovery under a life insurance policy.” (Emphasis added.) Bristol v. Commercial Union Life Ins. Co. of America, 211 Conn. 622, 628, 560 A.2d 460 (1989). Our statement was based in part upon State Bank & Trust Co. v. Connecticut General Life Ins. Co., 109 Conn. 67, 72-73, 145 A. 565 (1929), wherein this court held that “[m]aterial representations . . . relied on by the [insurance] company, which were untrue, and known by the assured to be untrue when made, invalidate the policy without further proof of actual conscious design to defraud. ... If it were necessary to prove an intent to deceive, such intent would be inferred from the making of the false representations with knowledge that they were false.” (Emphasis added.) Our decision in Bristol therefore reaffirms the continuing viability of the principles announced in State Bank & Trust Co., and, notwithstanding the cases referred to by Middlesex, demonstrates that we have rejected the line of authority holding that innocent misrepresentations are sufficient to void a life insurance policy.

Moreover, although we have not previously addressed the issue in the automobile insurance context, we find no persuasive reason, and Middlesex has offered none, why the principles governing misrepresentations on life insurance applications should not apply equally to misrepresentations on automobile insurance applications. We therefore hold that in order to constitute a misrepresentation sufficient to defeat recovery on an automobile insurance policy, a material representation on an application for such a policy must be known by the insured to be false when made. See Bristol v. Commercial Union Life Ins. Co. of America, supra; State Bank & Trust Co. v. Connecticut General Life Ins. Co., supra. Having established the framework for evaluating Middlesex’s material misrepresentation claims, we now turn to the merits of those claims.

A

The first claimed material misrepresentation in Walsh’s application is his dash mark response to the question: “List all children in the household (Names and dates of birth).” Middlesex argues that this response was a misrepresentation bécause it indicated that there were “no children” in Walsh’s household, a representation contradictory to his position throughout the arbitration hearing that his son, Donald, was a resident of his household. According to Middlesex, this alleged misrepresentation was material to the risk of underwriting Walsh’s policy since the number of children living in a household “is important in determining the risk based on potential driving exposures.” Middlesex therefore maintains that if it had been aware that Donald lived in Walsh’s household, it would have declined to afford coverage to Walsh. Because we are unpersuaded that Walsh’s response was a misrepresentation, we need not consider whether the alleged misrepresentation was material.

As we have stated above, Walsh’s response does not amount to a misrepresentation unless it was known by him to be false when made. See Bristol v. Commercial Union Life Ins. Co. of America, supra; State Bank & Trust Co. v. Connecticut General Life Ins. Co., supra. A statement cannot be knowingly false, however, and thus cannot be a misrepresentation in this context, unless it is in fact false. Whether a response to a question in an insurance application is false must be determined in light of the question asked. 7 G. Couch, supra, § 35:145. If the question is “so framed as to leave room for two constructions, the words used in it should be interpreted most strongly against the insurer. Rinaldi v. Prudential Ins. Co., 118 Conn. 419, 423, 172 A. 777 [1934].” O’Brien v. John Hancock Mutual Life Ins. Co., 143 Conn. 25, 29, 119 A.2d 329 (1955); see Schultz v. Hartford Fire Ins. Co., 213 Conn. 696, 702, 569 A.2d 1131 (1990). “This rule—that the construction most favorable to the insured be adopted—‘rests upon the ground that the company’s attorneys, officers or agents prepared the [application], and it is its language that must be interpreted.’ Roby v. Connecticut General Life Ins. Co., 166 Conn. 395, 402, 349 A.2d 838 [1974]. The rule itself derives from the established principle of contract construction that, where the terms of a contract are equally susceptible to two different meanings, that favoring the party who did not draw up the contract will be applied. ‘The premise operating behind the rule would seem to be a psychological one. The party who actually does the writing of an instrument will presumably be guided by his own interests and goals in the transaction. He may choose shadings of expression, words more specific or more imprecise, according to the dictates of these interests.’ Ravitch v. Stollman Poultry Farms, Inc., 165 Conn. 135, 146 n.8, 328 A.2d 711 [1973]. A further, related rationale for the rule is that ‘[s]ince one who speaks or writes, can by exactness of expression more easily prevent mistakes in meaning, than one with whom he is dealing, doubts arising from ambiguity are resolved in favor of the latter.’ 4 Williston, [Contracts (3d Ed.)] § 621, p. 760.” Simses v. North American Co. for Life & Health Ins., 175 Conn. 77, 84-85, 394 A.2d 710 (1978); see Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 584, 573 A.2d 699 (1990); Cody v. Remington Electric Shavers, 179 Conn. 494, 497, 427 A.2d 810 (1980).

In determining whether Walsh responded falsely to the question asked of him, therefore, we must construe the question as a lay person would understand it. Cody v. Remington Electric Shavers, supra; see Holy Trinity Church of God in Christ v. Aetna Casualty & Surety Co., 214 Conn. 216, 223-24 n.5, 571 A.2d 107 (1990). “[I]f the inquiry is so framed that it does not clearly inform the insured of its meaning, and he may have been honestly mistaken as to what was intended, and his answer, by fair and reasonable construction, may be considered a true one in response to the question as he understood it, such interpretation will be given, and a forfeiture precluded.” 7 G. Couch, supra, § 35:145. Thus, if Walsh could reasonably have understood the question as calling for a particular response, and the response given in accordance with that understanding is not false, the response does not amount to a misrepresentation.

The dictionary definition of the word “child” is instructive as to the meaning that Walsh could reasonably have attached to the question asking that he list “all children in the household.” Webster variously defines the word “child” as: “an unborn or recently born person ... a young person esp. between infancy and youth ... a person not yet of age ... a son or daughter of human parents . . . .” Webster’s, Ninth New Collegiate Dictionary. Because these definitions indicate that a “child” most commonly means a person under the age of majority, Walsh could reasonably have understood the question as inquiring whether any underage person lived in his household. It is undisputed that Donald was a thirty-eight year old adult at the time Walsh filled out the application. We therefore conclude that Walsh’s response to the question as fairly and reasonably construed in his favor was not false. Accordingly, the court properly determined that his response did not amount to a misrepresentation.

If Middlesex had intended the question to elicit a response disclosing the sons or daughters of any age living in Walsh’s household so that it could ascertain the “potential driving exposures” that it deems material to an underwriting risk, it could have expressed that intent in a question drafted with greater precision. Having failed to do so, Middlesex cannot now avoid the policy on the basis of a statement generated by an ambiguity for which it was responsible.

B

The second claimed material misrepresentation is Walsh’s “No” response to the following question: “Has any operator in the household had his/her license revoked or suspended during the past 5 years.” Middlesex attacks this response on the ground that Donald’s automobile operator’s license had been suspended, effective on December 17,1983, for failure to appear in court to answer the charges of driving without a license and with faulty equipment. Since the suspension occurred within the five year period preceding the application date of January 26, 1987, Middlesex contends that Walsh’s response was a misrepresentation. Middlesex argues for the materiality of this alleged misrepresentation by pointing to a minimum eligibility requirement of “no license suspensions or revocations in the household” that it had submitted to the Connecticut department of insurance. According to Middlesex, this requirement indicates that a license suspension in an insured’s household impermissibly increases its exposure to risk, and therefore, it would not have issued the policy to Walsh if Donald’s license suspension had been disclosed. Since we disagree with Middlesex that Walsh’s response was a misrepresentation, we need not reach the question of materiality.

As previously stated, a response to a question on an insurance application does not constitute a misrepresentation unless it is knowingly false. Bristol v. Commercial Union Life Ins. Co. of America, 211 Conn. 622, 628, 560 A.2d 460 (1989); State Bank & Trust Co. v. Connecticut General Life Ins. Co., 109 Conn. 67, 72-73,145 A. 565 (1929). The question asked of Walsh concerned the status of the licenses of “any operator in the household.” Even if we were to assume that this question is unambiguous, there is no indication in the record that Walsh knew or had reason to know that Donald had had a license during the five year period preceding the application, much less that his license had been suspended during that period. Walsh testified at the arbitration hearing that the last time he remembered Donald having had a license was “probably his last year in college, which would have been ‘73-ish.” This perception was shared by Donald’s mother, who testified that Donald had had a license “in the early seventies,” but did not recall that he had had a license during the period from 1977 to 1987. Donald had never owned a motor vehicle, and had been prohibited from driving the vehicles insured under Walsh’s policy. Furthermore, neither Walsh nor Donald's mother recalled Donald ever having received any mail from the motor vehicle department, and Donald’s mother testified that she had “looked at the mail every single day.” There was no evidence, moreover, that Donald’s parents regularly opened or read his personal mail, such that either of them would have discovered a notice of suspension of his license if one had been mailed to the Walsh address.

“[SJince an insured makes a knowing misrepresentation only when he submits an answer to a question in the application other than that which he has reason to believe is true, Lazar v. Metropolitan Life Insurance Company, 290 F. Supp. 179, 181 (D. Conn. 1968), it follows that an insured should not be held responsible for an answer in the application if he was justifiably unaware of its falsity, had no actual or implied knowledge of its existence, and was not guilty of bad faith, fraud, or collusion.” Lewis v. John Hancock Mutual Life Ins. Co., 443 F. Sup. 217, 218 (D. Conn. 1977). In the absence of any indication that Walsh knew or had reason to know that Donald’s license had been suspended in 1983, we cannot say that the court improperly concluded that Walsh’s representation that no operator in his household had suffered a license suspension or revocation during the five years preceding the application was known by him to be false when made. See Bristol v. Commercial Union Life Ins. Co. of America, supra; State Bank & Trust Co. v. Connecticut General Life Ins. Co., supra.

Ill

Middlesex’ final claim is that Walsh should be estopped from asserting that his son Donald was a resident of his household as a basis for recovery under the policy because he had represented on his application that no children lived in his household. According to Middle-sex, it would not have issued the policy to Walsh if he had not made the representation, and thus it relied upon the representation to its detriment. We are unpersuaded.

Under Connecticut law, “ ‘ “any claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury. . . .” ’ ” (Citations omitted.) O’Sullivan v. Bergenty, 214 Conn. 641, 648, 573 A.2d 729 (1990). It is the burden of the party asserting a claim of estoppel to establish the existence of the elements essential to an estoppel; see Cleary v. Zoning Board, 153 Conn. 513, 518, 218 A.2d 523 (1966); and whether that burden has been satisfied in a particular case is an issue of fact. Hanover Ins. Co. v. Fireman’s Fund Ins. Co., 217 Conn. 340, 350, 586 A.2d 567 (1991); New York Annual Conference v. Fisher, 182 Conn. 272, 300, 438 A.2d 62 (1980). The trial court’s factual determination will not be disturbed unless it is clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); see Hanover Ins. Co. v. Fireman’s Fund Ins. Co., supra.

The only evidence of detrimental reliance presented by Middlesex at the arbitration hearing was the testimony of James McClintock, the underwriting manager for Middlesex Mutual Automobile. While McClintock testified that Middlesex used information regarding children in a household to evaluate the maturity and responsibility of a named insured and the “risk based on potential driving exposures, licensed or not licensed in the household,” he also testified that Middlesex had “what we consider a subjective approach to underwriting and it’s, again, a gut feeling, based on gut feeling.” The subjective approach, in McClintock’s view, was also “based on [written eligibility criteria] to make a rational, common sense judgment call on each case based on the information provided on the application.” At no time did Middlesex demonstrate, through McClintock’s testimony or otherwise, that any of its written eligibility criteria or its “subjective approach” to underwriting required the rejection of an application for the sole reason that a child lived in the applicant’s household. Middlesex’ claim for estoppel, as we have noted, rests upon the inconsistency between Walsh’s representation on his application that no children lived in his household and his subsequent position at the arbitration hearing that Donald was a resident of his household.

In view of the lack of evidence demonstrating that Middlesex detrimentally relied upon the fact that it seeks to estop Walsh from asserting, we conclude that it was not clearly erroneous for the court to determine that Middlesex failed to satisfy its burden of establishing the existence of the elements essential to an estoppel.

IV

In his cross appeal, Walsh claims that the court should have found that he was entitled to recover interest on the arbitration award from the date of the award. He asserts that in ruling that he was entitled to recover interest only from the later date of the judgment confirming the award, the court improperly adhered to the principles governing interest allowable on an arbitration award set forth in Gary Excavating Co. v. North Haven, 163 Conn. 428, 311 A.2d 90 (1972). As Walsh points out, Gary Excavating Co. was decided before the amendment of General Statutes § 37-3a by Public Acts 1979, No. 79-364, which specifically allowed recovery of interest on an arbitration award. He claims that the broad language of § 37-3a, unlike the statutory provisions involved in Gary Excavating Co., permits the recovery of interest on an arbitration award prior to the date of the judgment confirming the award. We agree with Walsh insofar as he claims that prejudgment interest on an arbitration award is permissible.

Section 37-3a provides, with certain exceptions inapplicable here, that interest “may be recovered and allowed in . . . arbitration proceedings under chapter 909 ... as damages for the detention of money after it becomes payable . . . .” The proceeding commenced by Middlesex to vacate the arbitration award under General Statutes § 52-418, a provision contained in chapter 909 of the General Statutes, is unquestionably one in which the legislature intended that prejudgment interest might be recovered. In accordance with the permissive language of § 37-3a; see White Oak Corporation v. Department of Transportation, 217 Conn. 281, 302, 585 A.2d 1199 (1991); we have stated that “ ‘[t]he allowance of interest as an element of damages is primarily an equitable determination and a matter within the discretion of the trial court.' ” Metcalfe v. Talarski, 213 Conn. 145, 160, 567 A.2d 1148 (1989); Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 482, 542 A.2d 692 (1988). While the determination depends in part upon when the money involved is “payable”; see General Statutes § 37-3a; see also White Oak Corporation v. Department of Transportation, supra; “[t]he real question in each case is whether the detention of the money is or is not wrongful under the circumstances.” Cecio Bros., Inc. v. Feldmann, 161 Conn. 265, 275, 287 A.2d 374 (1971); see Associated Catalog Merchandisers, Inc. v. Chagnon, 210 Conn. 734, 748, 557 A.2d 525 (1989); Newington v. General Sanitation Service Co., 196 Conn. 81, 90, 491 A.2d 363 (1985). The determination “ ‘is one to be made in view of the demands of justice rather than through the application of any arbitrary rule.’ ” Cecio Bros., Inc. v. Feldmann, supra; Bernhard v. Rochester German Ins. Co., 79 Conn. 388, 398, 65 A. 134 (1906).

Since the court considered itself bound by Gary Excavating Co. to award interest to Walsh only from the date of the judgment confirming the award, it did not make a discretionary determination as to when the amount recoverable by Walsh under the policy was “payable” or whether it was “wrongfully detained” by Middlesex. We therefore remand Walsh’s claim for prejudgment interest to the trial court for a discretionary determination of these issues on the merits. See White Oak Corporation v. Department of Transportation, supra.

In sum, we affirm the judgment of the trial court with respect to its determinations that: (1) Donald was a resident of Walsh’s household; (2) Walsh made no material misrepresentations in his application for automobile liability insurance; and (3) Walsh was not barred from recovering under the policy by the doctrine of estoppel. We sustain Walsh’s cross appeal seeking reversal of the court’s ruling regarding interest, and we remand the case solely for a discretionary determination of the merits of Walsh’s claim for prejudgment interest under § 37-3a.

In this opinion the other justices concurred.

       General Statutes § 38-175c provides in pertinent part: “uninsured motorist coverage, (a) (1) Every such policy shall provide insurance, herein called uninsured motorist coverage ... for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles . . . Every such policy issued on or after October 1, 1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. . . .”

       General Statutes § 52-418 provides in pertinent part: “vacating award. (a) Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects ... (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       General Statutes § 52-417 provides in pertinent part: “application for order confirming award. At any time within one year after an award has been rendered and the parties to the arbitration have been notified thereof, any party to the arbitration may make application to the superior court ... for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.”

       Because the court found that “ample evidence” supported the arbitrators’ determination, and, in addition, reached the same conclusion after reviewing the record de novo, the court implicitly found that substantial evidence supported that determination.

       The court stated: “Evidently, during these periods of absence from the home he was in effect a street person, or drifter, sometimes staying at a shelter, a half-way house, or occasionally with friends or at a YMCA.”

       Since Walsh does not claim that Ms dash mark response means anytMng other than that no children lived in Ms household, we treat the response as having that meaning.

       “Connecticut courts have consistently referred to dictionary definitions to interpret words used in insurance contracts. See Continental Ins. Co. v. Cebe-Habersky, 214 Conn. 209, 212, 571 A.2d 104 (1990); see also Smedley Co. v. Employers Mutual Liability Ins. Co., 143 Conn. 510, 514-15, 123 A.2d 755 (1956); Lyon v. Aetna Casualty & Surety Co., 140 Conn. 304, 308, 99 A.2d 141 (1953).” Holy Trinity Church of God in Christ v. Aetna Casualty & Surety Co., 214 Conn. 216, 223-24 n.5, 571 A.2d 107 (1990).

       Furthermore, we note that construing the question as Walsh could reasonably have understood it eliminates any inconsistency between his response and his position at the arbitration hearing that Donald was a resident of his household. As the trial court pointed out, “the question did not ask [Walsh] to list all ‘persons’ residing in the household, for example, but only ‘children.’ ”

       While we have not previously construed the word “operator” as used in a question on an automobile insurance application, courts in other jurisdictions have found questions asking an applicant to list “operators” or “drivers” in a household to be ambiguous, and susceptible to reasonable interpretation by a lay person as calling for disclosure of “all those whom it was reasonably contemplated would be drivers of the insured automobile.” Gaskins v. General Ins. Co. of Florida, 397 So. 2d 729, 731 (Fla. App. 1981) (construing the word “drivers”); accord Patrons Mutual Ins. Co. v. Rideout, 411 A.2d 673, 676-78 (Me. 1980) (construing the word “operators”). In this case, the persons reasonably expected to drive the vehicles insured by Walsh’s policy were he and his wife, neither of whom had suffered a license suspension in the five years prior to the date of the application. Donald had been expressly prohibited from driving any of the vehicles, and in 1983, Walsh had instigated Donald’s arrest for driving one of the vehicles without permission. Since Donald was not reasonably expected to drive the vehicles, Walsh could reasonably have understood the question concerning “operators” as inapplicable to Donald.

       In this respect, we observe that there is no evidence in the record to establish that the charges that Donald had failed to appear in court to answer, which failure resulted in the suspension, were in any way connected to Ms arrest for driving the family car without permission as noted in footnote 9, supra. Consequently, the fact that Walsh presumably knew of Donald’s arrest for driving the family car does not support an inference that he also knew of the suspension.

       In fact, in response to a hypothetical question including all pertinent information relating to Donald, McClintock testified that Walsh’s application would have been rejected because “[w]e feel that any individual who has their license revoked or suspended within the last five years under almost any circumstances is enough for declination because . . . [w]e put a lot of credence on maturity and responsibility of every individual in the household.”


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Inland Wetlands and Watercourses Agency of the City of Middletown v. Landmark Investment Group, Inc., et al.
    (14177)
    Shea, Glass, Covello, Hull and Borden, Js.
    Argued February 22
    decision released May 14, 1991

      Russell Lehman, assistant city attorney, for the appellant (plaintiff).

      JuleA. Crawford, for the appellee (defendant South Farms of Middletown, Inc.).
   Borden, J.

The plaintiff, the inland wetlands and watercourses agency of the city of Middletown, appeals from the judgment of the trial court denying its motion to set aside a stipulated judgment entered into between it and the defendant South Farms of Middletown, Inc. (defendant). We affirm.

The defendant is the owner of the Talcott Ridge subdivision located in Middletown. In November, 1989, the plaintiff issued a cease and desist order to the defendant for certain alleged violations of the Inland Wetlands and Watercourses Act; General Statutes §§ 22a-36 through 22a-45; at the subdivision. Thereafter, the plaintiff brought this action against the defendant for, inter alia, an injunction restraining the defendant from violating the cease and desist order. In connection therewith, the plaintiff secured an ex parte temporary injunction from the trial court, Higgins, J. The defendant then moved to dissolve the temporary injunction.

On December 4, 1989, the parties appeared before the trial court, Budney, J., in an attempt to settle their dispute. Both parties were aware that the state department of environmental protection (DEP) had been investigating the defendant’s subdivision and it was important to both that the DEP agree to any settlement. The parties had prepared a written stipulation that purported to memorialize their settlement and the DEP’s agreement thereto.

The stipulation recited, inter alia, that the plaintiff had sought an injunction to stop the further construction of roadways and other improvements on the defendant’s property, that the defendant claimed that the injunction and cease and desist order were without merit, and that the DEP had investigated the project. The parties stipulated, inter alia, to the following provisions: that the case would be dismissed as against two of the defendants; see footnote 1, supra; because the remaining defendant South Farms of Middletown, Inc., was the real party in interest, and that the ex parte injunction would be dissolved. The defendant agreed to complete its construction in accordance with its original permit as modified by an attachment, “Exhibit A,” that concerned a soil and erosion control plan.

The dispute in this case revolves around paragraphs four and five of the stipulation. The typewritten portion at the conclusion of paragraph four provides: “The Court shall retain continuing jurisdiction over this matter until the Complaint as originally filed in this matter is finally disposed of.” That language is followed by the following handwritten language: “Nothing herein shall be construed to release South Farms of Middletown, Inc. from the requirements of The Water Pollution Control Act ([General Statutes §] 22a-416).” Paragraph five provides in typewritten terms: “The State consents to such Permit and Plan as set forth in Exhibit A and agrees that this Court shall retain continuing jurisdiction over this matter as set forth above.” The stipulation was signed by Attorney Michael F. Dowley on behalf of the defendant and by Attorney Timothy P. Lynch on behalf of the plaintiff. Although there was a typewritten entry for the consent of the DEP by its attorney, that entry was not signed.

The court indicated that it had before it the stipulation signed by Dowley and Lynch, and that “[t]he agreement also has certain revisions in writing.” The court also expressed its understanding that the DEP, through its attorneys, had agreed to the stipulation, although not in writing, and elicited from Dowley and Lynch their assurance that they had secured that agreement. Dowley represented to the court that he had spoken on the telephone to assistant attorney general Richard Webb, who represented the DEP, that Webb had reviewed a copy of the typewritten stipulation sent to him through telephonic facsimile (fax) technology, and that Webb had agreed to it with two additions, which Dowley had made. Dowley stated that one such addition was to paragraph four, namely, that the defendant was still subject to the Water Pollution Control Act, and that the other was to add certain language to Exhibit A. Dowley concluded: “That is my agreement between the City of Middletown and my client. The [DEP] has indicated that they could attempt to bring an abatement order should they deem it necessary, but that’s the agreement between myself and the City of Middletown.” After eliciting from Lynch that Dowley’s representations were accurate and that “everyone agrees to the stipulation,” the court rendered judgment incorporating the provisions of the stipulation.

On April 2,1990, the plaintiff filed this motion to set aside the judgment on the ground of mutual mistake of fact. The plaintiff claimed that the parties mistakenly believed that the DEP had agreed to the stipulation, that it had not in fact so agreed, and that the plaintiff would not have entered into the stipulation in the absence of that consent. After an evidentiary hearing, the court, Budney, J., found that there was no mutual mistake of fact, and denied the plaintiff’s motion. The plaintiff appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023.

The plaintiff claims that the trial court should have granted its motion because: (1) the court’s finding that there was no mutual mistake of fact was clearly erroneous; and (2) in the alternative, if the stipulation is read as the defendant has subsequently claimed, namely, that the plaintiff has ceded wetlands enforcement powers to the jurisdiction of the Superior Court, the stipulation is contrary to public policy. We reject the plaintiff’s first claim, and conclude that the second claim is not properly before us.

A judgment rendered upon a stipulation of the parties is in the nature of a contract and may be opened by the court if the stipulation was entered into by mutual mistake. Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980); see also O’Leary v. Industrial Park Corporation, 211 Conn. 648, 652-53 n.2, 560 A.2d 968 (1989). A mutual mistake is one that is common to both parties and effects a result that neither intended. Lopinto v. Haines, 185 Conn. 527, 532, 441 A.2d 151 (1981). Whether there has been such mistake is a question of fact. See McWilliams v. American Fidelity Co., 140 Conn. 572, 579, 102 A.2d 345 (1954); see also Weld v. Melly, 16 Conn. App. 555, 557-58, 548 A.2d 14 (1988).

A finding of fact is clearly erroneous when there is no evidence in the record to support it; Web Press Services Corporation v. New London Motors, Inc., 205 Conn. 479, 483, 533 A.2d 1211 (1987); or “ ‘when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 92 L. Ed. 2d 746 (1948). Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings. Rostain v. Rostain, 214 Conn. 713, 716, 573 A.2d 710 (1990).

There was no dispute that both Dowley, representing the defendant, and Lynch, representing the plaintiff, believed that the DEP had agreed to the stipulation. That common belief was based on several telephone conversations on December 4, 1989, and accompanying fax transmissions among Dowley, Lynch, Webb and Marla Butts, a senior environmental analyst at the DEP who had been investigating the defendant’s subdivision project. The plaintiff claimed in the trial court, however, that this common belief was mistaken because the DEP had not in fact agreed to the provision in paragraph five of the stipulation that the court would retain continuing jurisdiction over the matter. According to the plaintiff, that provision permitted the inference that the DEP had ceded its administrative enforcement powers over the Water Pollution Control Act to the court, despite the handwritten language in paragraph four that “[n]o thing herein shall be construed to release [the defendant] from the requirements of” that act, and the DEP had not agreed to such a provision.

Webb testified that he represented the DEP, and that on December 4,1989, he had a telephone conversation with Dowley in connection with a typewritten stipulation that had been faxed to Butts, who had brought it to his attention. He was aware that the parties were having settlement discussions. He further testified that he expressed to Dowley his concern with paragraph five of the stipulation, wherein “the State consented to [the] Court retaining jurisdiction” because “the DEP has its own enforcement statutes, and since it was not a party to this action, did not want to consent away, through this stipulated agreement, any enforcement . . . powers it might have” in the event the settlement did not resolve all problems to the DEP’s satisfaction. He testified further that he told Dowley that he “wanted language that indicated quite clearly that, the DEP was able to enforce pursuant to the State Water Pollution Control Statute.” Webb also testified that he did not receive a copy of the stipulation, as ultimately approved with the handwritten additions thereto, until December 7,1989, and that he then informed Dowley that he had not agreed to the stipulation as ultimately approved.

Webb testified further that on December 4,1989, he had suggested an insertion to the stipulation to the effect that the DEP would retain its jurisdiction to enforce the act, but that the handwritten language in paragraph four was not sufficient for that purpose because of the language of paragraph five. He read paragraph five to have the possible meaning that the DEP would no longer have its administrative jurisdiction to enforce the act but would have to apply to the court to do so. In that connection, he testified that it was his understanding that, in a subsequent administrative proceeding, the defendant had raised the defense that the DEP was not authorized to enforce the act against it administratively because of the stipulation. Nonetheless, he testified, the DEP retained its administrative enforcement jurisdiction and had brought administrative proceedings against the defendant pursuant to that jurisdiction.

Butts testified that she received a faxed copy of the proposed stipulation from Dowley on December 4, 1989, that she told Dowley that she wanted to ensure that the DEP’s authority to enforce the act was not derogated by the stipulation, and that it was her understanding that she would see a final copy of the stipulation before it was approved by the court. She knew, however, that the parties were in hurried settlement negotiations. She further testified that when she received the final copy by fax several days later she called Dowley and informed him that it was not clear from paragraphs four and five that the stipulation had preserved the DEP’s authority to enforce the act without going to court. She also testified that although she had authority to negotiate language of agreements to recommend to her superiors, she had no authority to enter into agreements on behalf of the DEP, and that such authority was reserved for the commissioner or her legal counsel.

Based primarily on this testimony, the plaintiff argues that the finding of the court regarding a lack of mutual mistake was clearly erroneous. The plaintiff overlooks, however, the testimony of Dowley and Lynch. Dowley testified that while he and Lynch were negotiating a settlement he knew that the DEP had an interest in his client’s project, and that he wanted to be sure that the DEP consented “to what we were consenting to.” He testified further that he and Lynch faxed copies of the proposed stipulation to Butts and Webb, and that he had a telephone conversation with Webb, who was looking at the stipulation, wherein Webb told him: “I want you to add the following language.” Dowley testified that in the course of that conversation “Marla Butts and [Webb] had the stipulation. They wanted to add—whatever penciled notations are on that stipulation, didn’t come from my office. Those penciled notations came from the State of Connecticut.” He testified further that after Butts made suggestions regarding the soil erosion and control plan, she told him that she wanted him to have Webb’s approval for the “actual language of the document,” that he was then switched to Webb, who told him “I want you to add the following language” regarding the Water Pollution Control Act, which Dowley added to the stipulation.

Dowley reasserted the truth of his representation to the court on December 4,1989, namely, that the DEP had consented to the agreement. He testified that he “spoke . . . the truth that day, in Court,” and that “as far as the State of Connecticut is [concerned], I’ll swear on a hundred million Bibles, that they consented that day, and that indeed, that is their agreement.” Dowley also testified that the defendant, in reliance on the agreement, spent approximately $180,000 in building a roadway. Moreover, a comparison of Webb’s and Butts’ testimony with that of Dowley indicates that, at least in general, their testimony corroborates his. Lynch’s testimony also corroborated that of Dowley, in part. He testified that Butts, speaking for the DEP, agreed to the stipulation.

On the basis of this record, we cannot say that there was no evidence to support the finding of the trial court that there was no mutual mistake regarding whether the DEP agreed to the stipulation as ultimately presented to the court. Nor can we say that on the entire record, which we have examined with care, we are left with the definite and firm conviction that the court made a mistake in finding as it did.

This does not mean, however, that the arguable ambiguity in paragraphs four and five over whether the DEP has ceded its Water Pollution Control Act enforcement power to the court must or even may be resolved in the defendant’s favor. Although there is some suggestion in the trial court file that the defendant has, in subsequent administrative proceedings, taken that position, in oral argument before this court the defendant acknowledged that paragraphs four and five, read together, do not mean that the DEP is barred from enforcing the Water Pollution Control Act administratively, without first going to court. The defendant further conceded to us that the DEP “could enforce the Water Pollution Control Act and certainly it has done so.” These acknowledgments, moreover, are consistent with Dowley’s representations to the trial court on December 4,1989, that the DEP had indicated that it could bring abatement proceedings under that act if it deemed them to be necessary. We take these acknowledgments as an explicit concession by the defendant that the DEP is not precluded from enforcing that act without first going to court.

The defendant cannot have it both ways. It cannot make an explicit concession in this court in its attempt to persuade us of the merits of its position in this appeal, and at the same time disclaim that concession in related administrative proceedings. Since the only purported mutual mistake relied on by the plaintiff in this case arose because of the uncertainty over whether paragraph five ousted the DEP of its administrative enforcement powers pursuant to the Water Pollution Control Act, and since the defendant has conceded that it did not, the trial court’s finding that there was no mutual mistake must stand.

The plaintiff claims in the alternative, however, that the trial court’s finding must fall because it is contrary to public policy for the plaintiff to have ceded its regulatory powers under the Inland Wetlands and Watercourses Act to the court. We decline to consider this claim because it was not presented to the trial court; O’Hara v. State, 218 Conn. 628, 639, 590 A.2d 948 (1991); and because it involves an inquiry into matters beyond those presented to the trial court on the plaintiff’s motion to set aside the judgment.

The trial court was presented only with the plaintiff’s claim of mutual mistake. Neither the plaintiff’s motion nor its memorandum of law in support thereof made any mention of this alternate claim. Although at one time during its final argument the plaintiff adverted to this claim, the defendant objected to its doing so, and the plaintiff did not pursue the issue further. Furthermore, the basis of the plaintiff’s assertion is that the “defendant . . . has stated at every opportunity, including numerous motions still pending in Superior Court, that the [plaintiff] is without authority to issue a cease and desist [order] or revoke the permit of the defendant.” The plaintiff argues that the stipulation is contrary to public policy “[i]f the Court were to accept defendant’s claim that this Stipulation in fact says what the defendant claims it says . . . .” (Emphasis added.) Thus, this argument of the plaintiff would involve an initial inquiry into whether the plaintiff, by entering into the stipulation, ceded all future enforcement powers to the court. That question involves a determination of the meaning and scope of the stipulated judgment, which is a factual question of the intention of the parties. Jucker v. Jucker, 190 Conn. 674, 679, 461 A.2d 1384 (1983); Verissimo v. Verissimo, 3 Conn. App. 222, 225, 486 A.2d 1134 (1985). Since the trial court was not presented with this question, this record understandably lacks any factual predicate for such a determination.

The judgment is affirmed.

In this opinion the other justices concurred.

       The stipulated judgment also purported to dismiss the plaintiff’s complaint as against the named defendant, Landmark Investment Group, Inc., and against another codefendant, Glenn Russo. Those parties have not participated in this appeal.

       It is not clear from the record whether the DEP had been investigating the subdivision for purposes of determining the defendant’s compliance with the Inland Wetlands and Watercourses Act; General Statutes §§ 22a-36 through 22a-45; or the Water Pollution Control Act; General Statutes §§ 22a-416 through 22a-484; or both.

       There are also handwritten insertions in paragraph 7 and on Exhibit A that are not at issue in this case.

       Although Dowley referred only to “Attorney Webb,” it is undisputed that he meant assistant attorney general Webb, who later testified in the hearing on the plaintiffs motion to set aside the judgment that is the subject of this appeal.

       Dowley also explained, in general terms, the purport of the other handwritten additions to the stipulation. See footnote 2, supra.

       The plaintiff does not claim that either Webb or Butts lacked authority to agree to the stipulation, presumably because Webb, as the commissioner’s counsel, had such authority.

       Although, as between the plaintiff and the defendant, there was no mutual mistake regarding whether the DEP agreed to the stipulation, in the absence of the DEP as party to this action we express no opinion on the extent, if any, to which the DEP is bound by the stipulation and the judgment incorporating it.


text:
    State of Connecticut v. Paul Perez
    (13944)
    Shea, Glass, Covello, Hull and Borden, Js.

      Argued February 22
    decision released May 14, 1991

      Carol R. Goldberg, assistant public defender, with whom was Kent Drager, assistant public defender, for the appellant (defendant).

      Donald A. Browne, state’s attorney, with whom, on the brief, was Linda Howe, assistant state’s attorney, for the appellee (state).
   Borden, J.

The principal issue of this appeal is whether a fourteen year old juvenile who has been arrested for murder, and whose case therefore must be transferred from the juvenile docket to the regular criminal docket pursuant to General Statutes (Rev. to 1987) § 46b-127 (1), may validly waive his Miranda rights without a specific warning of the possibility of such a transfer. The defendant appeals from the judgment of conviction of murder in violation of General Statutes § 53a-54a (a), rendered upon his conditional plea of nolo contendere pursuant to General Statutes § 54-94a, following the denial by the trial court of his motion to suppress his confession.

The defendant claims that the trial court should have suppressed his confession because: (1) it was impossible for him to make an intelligent, knowing and voluntary waiver of his Miranda rights absent a specific warning that he would be exposed to more than juvenile treatment of the charges against him; and (2) under the totality of the circumstances, his waiver was not knowing and intelligent. We affirm.

On May 30,1988, the defendant, who was then fourteen years of age, was arrested by the Bridgeport police department for a murder that had occurred on May 27, 1988, in Father Panik Village. Thereafter, the state filed a delinquency petition against the defendant in the Superior Court for juvenile matters based upon an allegation of intentional murder in violation of General Statutes § 53a-54a. The case was transferred to the regular criminal docket pursuant to General Statutes § 46b-127. After the court found probable cause pursuant to General Statutes § 54-46a, the defendant moved to suppress a written confession that he had given on the evening of his arrest. Following an evidentiary hearing, the trial court denied the motion. The defendant thereafter entered a conditional plea of nolo contendere. The court accepted the plea, and sentenced the defendant to twenty-five years imprisonment. The defendant appealed directly to this court pursuant to General Statutes § 51-199 (b).

The state’s evidence at the hearing on the motion to suppress was as follows. On May 30,1988, at approximately 2 p.m., the Bridgeport police arrested the fourteen year old defendant for the crime of murder in connection with a shooting death in Father Panik Village on May 27, 1988. Uniformed police officers took the defendant to the detective bureau of the police department. The detective bureau is in the main office of the police department, and the youth bureau, where juvenile cases are ordinarily processed, is in a different location. The defendant was calm, passive and quiet at the time of the arrest and while he was being transported to the police station.

At the detective bureau, Detective Robert Kwett, who was in charge of the investigation, told the defendant that he was under arrest for murder and that they could not discuss the matter without the presence of his mother, Jeanette Perez. The police eventually located Jeanette Perez in New London, where she was visiting relatives, and awaited her arrival at the police station. While they waited, the defendant was detained without questioning in an interrogation room, was supplied with food and water, and was permitted to use the bathroom. Kwett entered the interrogation room several times to make sure that the defendant was all right.

Jeanette Perez arrived at the police station at approximately 8 p.m. and spoke to Detective Michael Kozlowsky, who informed her that her presence was necessary while the defendant was advised of his rights and questioned about the shooting. Jeanette Perez spoke English very well.

After leaving Jeanette Perez and the defendant alone in the interrogation room for approximately ten minutes, Kozlowsky entered the room and began the interrogation by determining from the defendant and Jeanette Perez that they each could read and write English. Kozlowsky had the defendant read aloud the first two lines of a “rights form” document and Kozlowsky read aloud a copy of the form to them while they read the form. While Jeanette Perez looked on, the defendant filled in the identifying and background information at the top of the form by writing the date, his name, his age and birth date, the name of the last school he had attended, the last grade he had completed, and writing “yes” to the questions, “Can you read?” and “Can you write?”

Kozlowsky asked the defendant and Jeanette Perez to read each of the individual rights while he read the rights aloud to them. He asked them if they understood them, and told them that if they did so, to initial the form. The defendant initialed each of the five printed warnings of rights, and at 8:35 p.m. he signed and dated the form directly underneath the waiver of these rights. Jeanette Perez and Kozlowsky signed the form as witnesses to his signature.

Kozlowsky then questioned the defendant in the presence of Jeanette Perez, and the defendant’s confession to the shooting was reduced to a four page typewritten statement in question and answer form. In the statement, the defendant acknowledged that it was taken in the presence of Jeanette Perez, that he could read and write English, and that he had completed the fifth grade in school. He also acknowledged that he had been advised of his rights, both orally and in writing, that he understood them, that there had been no threats, promises or rewards, and that he gave the statement of his own free will. The statement indicated that it began at 9 p.m. and ended at 10 p.m.

Before the defendant signed the statement, Kozlowsky asked Kwett to review the statement in order to determine whether he “had covered all the bases.” While Kozlowsky was out of the room, Kwett told the defendant and Jeanette Perez that if someone had put him up to the shooting, or if there were other extenuating circumstances, he should tell the police. Kwett also told them that the case would not remain in the juvenile system but would be “referred to the adult court system.” He told the defendant to discuss with his mother whether anyone else was responsible for his participation in the shooting, and left the two of them alone in the room for that purpose. When Kwett returned to the room, the defendant told him that he had nothing to add to the statement.

Kozlowsky returned to the room and told the defendant to read the statement and to sign each page if he agreed to what had been typed thereon. The defendant read the statement, signed the margins of the first three pages, and signed at the end of the fourth page. Jeanette Perez and Kozlowsky signed as witnesses to his signature, and another police officer took the defendant’s oath to the statement.

Throughout the entire procedure the defendant was calm and collected. At no time did he indicate that he wanted the questioning to stop or that he wanted an attorney. There were no threats or promises made to him.

There was also testimony at the hearing on the motion to suppress from James Fulton, who had been the defendant’s juvenile probation officer since 1985, when the defendant’s extensive involvement with the juvenile authorities began. On several prior occasions, Fulton had advised the defendant, in the presence of Jeanette Perez, of his right to remain silent, of the fact that anything he said could be used in court, and of his right to an attorney and to have an attorney appointed if he could not afford one. Further, he also had been with Jeanette Perez and the defendant when the defendant had been similarly advised by a judge in the juvenile courtroom. The defendant and Jeanette Perez had understood those rights on those occasions. Although the defendant had never before had a case referred from the juvenile court to the regular criminal docket, he had been committed to the custody of the commissioner of children and youth services with a placement at Long Lane School. Fulton had advised the defendant on several occasions that if he continued to engage in serious delinquent conduct he would end up in the adult court with “more serious consequences.”

The trial court specifically found that Fulton had previously advised the defendant that, “because of his continued . . . course of conduct, he could end up in adult court.” The court also found that he had been folly advised of his Miranda rights, and that his waiver of those rights had been intelligent, knowing and voluntary. Accordingly, the court denied the motion to suppress. This appeal followed.

I

The defendant’s principal claim is that, under the self-incrimination clauses of the fifth amendment to the United States constitution and article first, § 8, of the Connecticut constitution, “it was not possible for him to make an intelligent, knowing and voluntary waiver of his [Miranda] rights because he was not adequately informed of the potential consequences of such waiver.” Those potential consequences were that, notwithstanding his age, the murder to which he confessed would be prosecuted on the regular criminal docket, rather than in the juvenile part of the Superior Court, and that he would thereby be exposed to criminal, rather than juvenile, sanctions. The defendant argues that, notwithstanding the totality of the circumstances surrounding his waiver, his confession was rendered inadmissible by the absence of any such warnings by the police. We disagree.

We first consider the constitutional basis for the defendant’s claim. Although he purports to rely on both the federal and the state constitutions, his brief is bereft of any analysis of article first, § 8, of the Connecticut constitution. We consistently have declined to consider criminal state constitutional claims in the absence of an independent analysis of the particular state constitutional provision at issue; see State v. Mooney, 218 Conn. 85, 89 n.5, 588 A.2d 145 (1991); State v. Couture, 194 Conn. 530, 572A-B n.2, 482 A.2d 300 (1984), cert. denied, 496 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985); and we decline to depart from that wise policy in this case.

Instead of furnishing such an analysis, the defendant relies primarily on the decision of the New Hampshire Supreme Court in State v. Benoit, 126 N.H. 6, 490 A.2d 295 (1985), where the court stated that “when a confession is to be admitted against a child in adult criminal court, we are persuaded that for a judge to conclude that the statements were made knowingly and intelligently, the child, when facing a charge that would be a felony if committed by an adult, must have been advised of the possibility of his being tried as an adult and of his being subject to adult criminal sanctions.” (Emphasis in original.) Id., 17. Accordingly, the court held that a juvenile’s waiver of his rights against self-incrimination can only be deemed to have been voluntary, knowing and intelligent “if facing charges that would constitute a felony if committed by an adult, the juvenile [was] informed of the consequences of a certification to stand trial as a criminal [adult] defendant.” Id., 19. The defendant in this case urges us to adopt the same principle. We decline to do so.

First, the explicit constitutional basis of Benoit was the right against self-incrimination under “part I, article 15 of the New Hampshire constitution”; id., 16; and not the fifth amendment to the United States constitution. Although we have looked to the constitutions of other states in order to illuminate the meaning of our own; see, e.g., State v. Marsala, 216 Conn. 150, 171-72 n.14, 579 A.2d 58 (1990); reliance on other state constitutional precedent does not suffice as a proxy for independent analysis of our own constitutional language, history, tradition and policy. Absent such an analysis in this case, we decline to adopt the Benoit rule as a persuasive interpretation of article first, § 8, of the Connecticut constitution.

We turn, therefore, to the claim of the defendant that the fifth amendment, as applied to the states through the due process clause of the fourteenth amendment, requires that, in order for the defendant to have voluntarily, knowingly and intelligently waived his right against self-incrimination, he must have been advised that he was subject to criminal prosecution as an adult, rather than having his case disposed of in the juvenile part of the court. We are unpersuaded.

The touchstone of this analysis is Fare v. Michael C., 442 U.S. 707, 99 S. Ct. 2560, 61 L. Ed. 2d 197 (1979), where the court held that it was inconsistent with the principles underlying Miranda for the California Supreme Court to hold that a juvenile’s request for his probation officer during questioning was “a per se invocation of Fifth Amendment rights in the same way the request for an attorney was found in Miranda to be, regardless of what the interrogation otherwise might reveal.” (Emphasis in original.) Id., 714-15. In Fare, the court held that California’s rejection of the totality of the circumstances approach to juvenile confessions was constitutionally impermissible as a matter of federal constitutional law. Id., 717; see also Oregon v. Hass, 420 U.S. 714, 719, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975).

The court stated: “[The] totality-of-the-circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved. . . . This includes evaluation of the juvenile’s age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.” Fare v. Michael C., supra, 725. The court expressed its confidence that the totality of the circumstances test affords a court the “necessary flexibility” to take into account a juvenile’s “limited experience . . . education and . . . immature judgment . . . .’’Id. “At the same time, that approach refrains from imposing rigid restraints on police and courts in dealing with an experienced older juvenile who knowingly and intelligently waives his Fifth Amendment rights and voluntarily consents to interrogation.” Id., 725-26.

Similarly, in this case a per se requirement that a juvenile be advised of the possibility of transfer of his case to the regular criminal docket would impose a rigid requirement on the police that would be inconsistent with the principles underlying Miranda and Fare. The totality of circumstances standard is capacious enough to take the necessity of such advice into account in the court’s determination of whether, under all the circumstances of a given case, the defendant’s waiver was voluntary. Thus, where the circumstances indicate that the defendant’s waiver was impelled principally by his belief that only juvenile, and not adult, court consequences would follow, “the totality approach will allow the court the necessary flexibility to take this into account in making a waiver determination.” Id., 725. There is neither a need nor a sound policy reason to transform that possibility into a per se rule.

We recognize, of course, “that courts should take ‘special care’ in scrutinizing a purported confession or waiver by a child. Haley v. Ohio, 332 U.S. 596, 599, 68 S. Ct. 302, 92 L. Ed. 2d 224 (1948) (plurality opinion of Douglas, J.). As the United States Supreme Court acknowledged in In re Gault, [387 U.S. 1, 45, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967)], ‘special problems may arise with respect to waiver of the privilege by or on behalf of children and . . . there may well be some differences in technique—but not in principle-depending upon the age of the child and the presence and competence of parents.’ See also Gallegos v. Colorado, 370 U.S. 49, 53-55, 82 S. Ct. 1209, 8 L. Ed. 2d 325 (1962) (mandating a ‘close scrutiny’ of the confession of a fourteen year old murder suspect); In re B.M.H., 177 Ga. App. 478, 479, 339 S.E.2d 757 (1986) (describing the ‘heavy burden’ of establishing juvenile waiver of rights).” In re Manuel R., 207 Conn. 725, 738, 543 A.2d 719 (1988). That special care and close scrutiny does not translate, however, into the rigid rule proposed by the defendant in this case.

This conclusion is in accord with the overwhelming weight of the authorities that have considered this question. Those authorities have applied a totality of the circumstances test to confessions by juveniles, and have rejected the notion that such a confession is rendered involuntary solely by virtue of the fact that the police did not inform the juvenile that he could be prosecuted as an adult, rather than as a juvenile. See, e.g., In re Appeal in Pinal County, Juvenile Action No. J-677, 134 Ariz. 502, 503, 657 P.2d 915 (1982); State v. Mattox, 113 Ariz. 252, 254-55, 550 P.2d 630 (1976); People v. Prude, 66 Ill. 2d 470, 475-76, 363 N.E.2d 371, cert. denied, 434 U.S. 930, 98 S. Ct. 418, 54 L. Ed. 2d 291 (1977); State v. O’Connor, 346 N.W.2d 8, 10 (Iowa 1984); Edwards v. State, 227 Kan. 723, 726, 608 P.2d 1006 (1980); State v. Stewart, 197 Neb. 497, 507-509, 250 N.W.2d 849 (1977), overruled on other grounds, State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1987); Quiriconi v. State, 96 Nev. 766, 771-72, 616 P.2d 1111 (1980); Matter of V. W.B., 665 P.2d 1222, 1223-24 (Okla. 1983); State v. Gullings, 244 Or. 173, 181-82, 416 P.2d 311 (1966); Harris v. Commonwealth, 217 Va. 715, 719-20, 232 S.E.2d 751 (1977); State v. Luoma, 88 Wash. 2d 28, 36-38, 558 P.2d 756 (1977); State v. Manns, 329 S.E.2d 865, 870 (W. Va. 1985).

This conclusion is also supported by sound public policy. The factual basis of the defendant’s claim is that a juvenile like him, who had extensive previous contact with the juvenile system without referral to the regular criminal docket, would be likely to expect similar treatment and, therefore, would be more likely to be misled by his prior experience into waiving his rights than if he knew that more serious consequences were to follow. This rationale would not apply, however, to the first time juvenile offender. We doubt the wisdom of a proposed constitutional requirement designed to protect the juvenile experienced in the ways of law enforcement and the judicial system but not the juvenile inexperienced in those ways.

II

The defendant’s alternate claim is that his confession should have been suppressed because, under the totality of the circumstances, it was involuntary. We disagree.

The totality of the circumstances test applicable to the waiver by a juvenile of his Miranda rights involves inquiry into the “ ‘juvenile’s age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.’ ” State v. Whitaker, 215 Conn. 739, 754, 578 A.2d 1031 (1990), quoting Fare v. Michael C., supra, 725. Additional sources of inquiry include experience with the police and familiarity with the warnings, ability to read and write in the language used to give the warnings, any intoxication, the juvenile’s emotional state, and any mental disease, disorder or retardation. State v. Whitaker, supra. We scrupulously examine the record to determine whether the court’s finding of voluntariness is supported by substantial evidence; State v. Chung, 202 Conn. 39, 48-49, 519 A.2d 1175 (1987); and whether the waiver was established by a preponderance of the evidence. State v. Whitaker, supra, 753.

Applying these principles to this case, we conclude that the court’s finding of a voluntary, knowing and intelligent waiver must stand. The defendant was familiar with the police and with Miranda warnings, as indicated by his extensive juvenile record. At age fourteen, he was near the upper limit for treatment as a juvenile in this state, age fifteen. Despite his rather limited formal education, he demonstrated no difficulty with the English language, either written or spoken, and there is no suggestion in this record of any intoxication, or mental or emotional impairment of any kind. He was calm throughout the entire process. His initials and signatures on both the waiver of rights form and on the written confession are clear and legible. The police scrupulously followed proper procedure in warning him, in his mother’s presence, of his rights and in obtaining his written waiver of those rights.

Furthermore, there is no evidence in this record to suggest that the defendant was in fact misled into waiving his rights by his prior contact with the juvenile system. He had been previously warned by Fulton that continued serious delinquent conduct would lead to adult criminal treatment, and the questioning in this case took place, not in the youth bureau, but in the detective bureau, thus distinguishing it from the defendant’s prior juvenile experiences. Moreover, when Kwett specifically warned him before he signed the statement that this particular case would be transferred to the adult criminal docket, he nonetheless was willing to sign the statement.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1987) § 46b-127 (1) provides: “The court shall transfer to the regular criminal docket of the superior court from the docket for juvenile matters: (1) Any child referred for the commission of a murder under sections 53a-54a to 53a-54d, inclusive, provided any such murder was committed after such child attained the age of fourteen years.”
      We note that § 46b-127 was amended effective July 1,1991. This amendment is irrelevant for the purposes of the appeal before us, and our references to § 46b-127 throughout this opinion relate to the 1987 revision.

       See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       General Statutes § 53a-54a (a) provides: “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 his 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 § 54-94a provides: “conditional nolo contendere PLEA. APPEAL OF DENIAL OF MOTION TO SUPPRESS OR DISMISS. When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       General Statutes Sec. 54-46a provides: “probable cause hearing for PERSONS CHARGED WITH CRIMES PUNISHABLE BY DEATH OR LIFE IMPRISONMENT. (a) No person charged by the state, who has not been indicted by a grand jury prior to May 26, 1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.
      “(b) Unless waived by the accused person or extended by the court for good cause shown, such preliminary hearing shall be conducted within sixty days of the filing of the complaint or information in superior court. The court shall be confined to the rules of evidence, except that written reports of expert witnesses shall be admissible in evidence and matters involving chain of custody shall be exempt from such rules. No motion to suppress or for discovery shall be allowed in connection with such hearing. The accused person shall have the right to counsel and may attend and, either individually or by counsel, participate in such hearing, present argument to the court, cross-examine witnesses against him and obtain a transcript of the proceedings at his own expense. At the close of the prosecution’s case, if the court finds that, based on the evidence presented by the prosecution, probable cause exists, the accused person may make a specific offer of proof, including the names of witnesses who would testify or produce the evidence offered. The court shall not allow the accused person to present such evidence unless the court determines that such evidence would be sufficient to rebut the finding of probable cause.
      “(c) If, from the evidence presented pursuant to subsection (b) of this section, it appears to the court that there is probable cause to believe that the accused person has committed the offense charged, the court shall so find and approve the continuance of the accused person’s prosecution for that offense. A determination by the court that there is not probable cause to require the accused person to be put to trial for the offense charged shall not operate to prevent a subsequent prosecution of such accused person for the same offense.”

       General Statutes § 51-199 (b) provides in pertinent 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, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years . . . .”

       Although the defendant’s mother testified at the hearing, the defendant did not.

       The form stated that the defendant had been advised and knew that (1) he had a right to remain silent; (2) anything he said could be used against him in a court of law; (S) he had a right to an attorney, and that the attorney could be with him while he was being questioned by the police; (4) if he could not afford an attorney, one would be appointed for him and he could have the attorney with him before answering any questions; and (5) he could refuse to answer questions, or could stop answering questions at any time if he so desired.

       The waiver stated; “Now that I have been advised of my rights and that I fully understand these rights, I am willing to be interviewed and answer questions. I do not wish the presence of an attorney at this time. I am waiving these rights freely and voluntarily, without any fear, threat, or promises being made to me.” (Emphasis in original.)

       The fifth amendment to the constitution of the United States provides in pertinent part that no person “shall be compelled in any criminal case to be a witness against himself . . .

       The constitution of Connecticut, article first, § 8, provides in pertinent part: “No person shall be compelled to give evidence against himself . . . .”

       Furthermore, the viability of State v. Benoit, 126 N.H. 6, 490 A.2d 295 (1985), as constitutional precedent even in New Hampshire is doubtful. In State v. Dandurant, 132 N.H. 617, 567 A.2d 592 (1989), the court declined to follow Benoit primarily because of a statute that “obviate[d] the requirement of such simplified [Benoit] warnings . . . .” State v. Dandurant, supra, 619. If the underpinnings of Benoit were constitutional, it is difficult to see how a statute could obviate its rule.

       We do not imply, however, that even in such a case the court would be required by that fact alone to hold any ensuing waiver invalid. That is simply one of the circumstances that the court must consider.

       It is true that in In re Manuel R., 207 Conn. 725, 543 A.2d 719 (1988), we stated that “the validity of a child’s waiver of counsel depends upon furnishing the child with full information not only about the child’s own legal rights but also about the overall nature of the proceeding against him or her.” Id., 738. That statement, however, was made in the context of deciding whether the juvenile in that case had made a valid waiver of counsel at his dispositional hearing in the juvenile court. Id., 740. Its broad language is inapplicable to the waiver of the right to counsel in a custodial interrogation setting governed by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 160, 16 L. Ed. 2d 694 (1966).