text:
    GENERAL MOTORS CORPORATION v. EUGENE DOHMANN
    (SC 15935)
    Callahan, C. J., and Borden, Berdon, Norcott and Katz, Js.
    Argued September 22
    officially released December 22, 1998

      Albert A. Zakarian, pro hac vice, for the appellant (plaintiff).

      Garry Desjardins, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Steven M. Rutstein, assistant attorney general, for the appellee (intervening defendant).
   Opinion

CALLAHAN, C. J.

The sole issue in this appeal is whether the Connecticut “lemon law,” General Statutes §§ 42-179 through 42-186, requires the plaintiff, General Motors Corporation, to provide the defendant, Eugene Dohmann, with a replacement vehicle.

The arbitration panel to which the matter had been referred subsequent to the defendant having instituted an arbitration proceeding pursuant to General Statutes § 42-181 reasonably could have found the following facts. On October 26, 1996, the defendant purchased a new Chevrolet S-10 pickup truck (truck) from Maritime Motors (Maritime), a General Motors dealership located in South Norwalk. The following day, the defendant noticed defects in the paint on the truck’s hood, roof and bumpers. The defendant promptly notified Maritime of the defects and requested that the dealership provide him with a replacement vehicle pursuant to General Statutes § 42-179. Maritime agreed to inspect the truck for defects, but refused the defendant’s request for a replacement vehicle.

After inspecting the truck, Maritime agreed that the truck’s paint was defective, but again refused to provide a different vehicle. Instead, the dealership offered to replace the track’s hood, the part of the track on which the paint defects were most visible, with a hood taken from another vehicle of the same color. The defendant allowed Maritime to undertake that repair attempt. The replacement hood, however, did not fit properly and the paint was not an exact match. Dissatisfied with the repair attempt, the defendant told Maritime to reinstall the original hood, and Maritime complied.

Maritime subsequently suggested two other possible methods of curing the defects in the paint: (1) wet sanding and (2) repainting the affected areas of the truck. The defendant, however, rejected these suggestions because he believed that both wet sanding and repainting would remove the truck’s original factory finish. In the defendant’s view, the factory process produces a paint finish superior to that of a body shop. As a result, he informed Maritime that he would not accept any repairs that would remove or alter the factory finish of the truck. Because both of the suggested repairs involved processes that would alter the truck’s original factory finish, the defendant refused to authorize additional repair attempts.

Thereafter, the defendant initiated an arbitration proceeding against the plaintiff pursuant to § 42-181. After a hearing, a three member arbitration panel determined that: (1) the truck had been subject to a reasonable number of unsuccessful repair attempts, and (2) the defective paint substantially impaired the track’s value to the defendant. See General Statutes § 42-179 (d) and (e). Consequently, the panel concluded that, under § 42-179, the defendant was entitled to a new, comparably equipped replacement vehicle.

The plaintiff filed a timely application in the Superior Court to vacate the arbitration award. See General Statutes § 52-418. The Connecticut department of consumer protection subsequently was granted leave to intervene as a party defendant pursuant to Practice Book § 99, now § 9-18, and General Statutes § 52-107. The trial court agreed with the arbitration panel and, therefore, denied the plaintiffs application to vacate the arbitration award. The plaintiff appealed from the decision of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

On appeal, the plaintiff claims that the trial court improperly affirmed the decision of the arbitration panel. Specifically, the plaintiff maintains that the record does not contain substantial evidence to support the arbitrators’ findings that: (1) the truck had been subject to a reasonable number of repair attempts, and (2) the defects in the paint substantially impaired the value of the truck to the defendant. See General Statutes § 42-179 (d) and (e).

I

Our analysis begins with a brief overview of Connecticut’s lemon law legislation. “In 1982, the Connecticut legislature enacted Public Acts 1982, No. 82-287 (Lemon Law I). That act is codified as General Statutes § 42-179. For consumer buyers of new motor vehicles, the act provides supplemental remedies of repair, replacement and refund to facilitate the enforcement of express warranties made by the manufacturers of such vehicles. These supplemental remedies come into play whenever a manufacturer or authorized dealer, after a reasonable number of repair attempts, is unable substantially to conform a new vehicle to the terms of the express warranty. . . .

“In 1984, the legislature enacted Public Acts 1984, No. 84-338 (Lemon Law II), now codified as General Statutes §§ 42-181 through 42-184. The purpose of Lemon Law II is to provide, for consumer purchasers of new motor vehicles, an alternative to civil litigation. The key provision is § 42-181, which authorizes the department of consumer protection to establish ‘an independent arbitration procedure for the settlement of disputes between consumers and manufacturers of motor vehicles which do not conform to all applicable warranties under the terms of section 42-179.’ ” Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, 203 Conn. 63, 70-71, 523 A.2d 486 (1987).

As a threshold matter, we note that judicial review of lemon law arbitration awards is governed by § 42-181 (c) (4), which provides in relevant part: “The court shall conduct a de novo review of the questions of law raised in the application. ... In reviewing questions of fact, the court shall uphold the award unless it determines that the factual findings of the arbitrators are not supported by substantial evidence in the record . . . .” Pursuant to this test, a reviewing court must determine whether there is substantial evidence in the record to support the arbitrators’ findings of fact and whether the conclusions drawn from those facts are reasonable. Connecticut Light & Power Co. v. Dept. of Public Utility Control, 216 Conn. 627, 639, 583 A.2d 906 (1990). Moreover, “[i]n determining whether an [arbitration panel’s] finding is supported by substantial evidence, a court must defer ... to the [arbitration panel’s] right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part.” (Internal quotation marks omitted.) Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 660-61 n.15, 591 A.2d 101 (1991); Connecticut Light & Power Co. v. Dept. of Public Utility Control, supra, 640. “This limited standard of review dictates that, [w]ith regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the [arbitration panel].” (Internal quotation marks omitted.) New England Cable Television Assn., Inc. v. Dept. of Public Utility Control, 247 Conn. 95, 117-18, 717 A.2d 1276 (1998); Connecticut Light & Power Co. v. Dept. of Public Utility Control, 219 Conn. 51, 57, 591 A.2d 1231 (1991). With these principles in mind, we address the merits of the plaintiffs arguments.

II

The plaintiff first claims that the record does not contain substantial evidence to support the arbitrators’ finding that the defendant’s truck had been subjected to a reasonable number of unsuccessful attempts to repair its paint. Specifically, the plaintiff maintains that, because the additional repairs suggested by the dealership were capable of producing a paint finish that met factory standards, the single attempt to cure the defect by replacing the truck’s hood was insufficient to constitute the requisite reasonable number of repair attempts. See General Statutes § 42-179 (e). We disagree.

Section 42-179 provides in relevant part: “(d) If the manufacturer, or its agents or authorized dealers are unable to conform the motor vehicle to any applicable express warranty by repairing or correcting any defect or condition which substantially impairs the use, safety or value of the motor vehicle to the consumer after a reasonable number of [repair] attempts, the manufacturer shall replace the motor vehicle with a new motor vehicle acceptable to the consumer . . . . (e) It shall be presumed that a reasonable number of [repair] attempts have been undertaken . . . if . . . the same nonconformity has been subject to repair four or more times .... No claim shall be made under this section unless at least one attempt to repair a nonconformity has been made . . . .” (Emphasis added.)

When the lemon law was enacted in 1982, the precursor to § 42-179 (e) did not include the requirement that “[n]o claim shall be made under this section unless at least one attempt to repair a nonconformity has been made . . . .” See General Statutes (Rev. to 1983) § 42-179 (d). The legislature added that language in 1989, in response to a report of the legislative program review and investigations committee. See Public Acts 1989, No. 89-173; see also General Statutes (Rev. to 1991) § 42-179 (e). We previously have concluded that reports from blue ribbon commissions and legislative committees, such as the legislative program review and investigations committee, are instructive of legislative intent. See Ensign-Bickford Realty Corp. v. Zoning Commission, 245 Conn. 257, 272-73, 715 A.2d 701 (1998); Ferrigno v. Cromwell Development Associates, 244 Conn. 189, 196, 708 A.2d 1371 (1998). Specifically, the legislative program and review committee’s report read in relevant part: “[GJenerally a reasonable number of repair attempts is defined as four attempts during the first 18,000 miles or two years and the problem continues to exist .... In some instances, less than four repair attempts is allowed if the problem is one for which evidence exists that no repair will bring the vehicle back into conformance.” Legislative Program Review and Investigations Committee, Performance Audit of the Connecticut Lemon Law (1989), p. 20. The report further states: “[I]n cases involving problems with the paint on a vehicle, a determination may be made that it is impossible for any dealer to repaint the vehicle in a maimer that would match the type of finish originally achieved at the manufacturer’s plant when the car was built.” Id., p. 21. Consequently, if the record contains substantial evidence to support a finding that proposed additional repair attempts would not have produced a paint finish that satisfied factory paint specifications, arbitrators reasonably may find that a single repair attempt is sufficient under § 42-179 (e).

The record before us reveals the following regarding the utility of additional repair attempts. The plaintiff presented affidavits of two automobile body experts who stated that body shop paint processes are capable of producing results equal to, and in some cases superior to, those produced by the original factory paint process. The state’s technical expert, Gregory Carver, however, testified that the conditions under which the factory originally paints a vehicle are superior to those that exist in a body shop. Specifically, Carver stated that paint bonds to the surface of a vehicle most successfully the first time it is applied, and that, therefore, it is impossible for a body shop to duplicate the bond achieved at the factory. Carver further stated that the finish of a repainted vehicle is less durable than the finish applied at the factory.

The arbitration panel acted within its discretion as a fact finder by crediting Carver’s testimony over that of the plaintiff. Chmielewski v. Aetna Casualty & Surety Co., supra, 218 Conn. 660-61 n.15; Connecticut Light & Power Co. v. Dept. of Public Utility Control, supra, 216 Conn. 640. Moreover, on the basis of Carver’s testimony, the arbitration panel reasonably could have concluded that the suggested additional repair attempts would not have produced a finish that met factory paint specifications. We conclude, therefore, that the record contains substantial evidence to support the panel’s conclusion that, under the circumstances, Maritime’s attempt to replace the truck’s hood constituted a reasonable number of repair attempts as required by § 42-179 (e).

Ill

The plaintiff next claims that the arbitrators improperly concluded that the paint defects substantially impaired the value of the truck to the defendant. Specifically, the plaintiff maintains that: (1) the standard for “substantial impairment” under § 42-179 (d) incorporates both a subjective and an objective component and (2) the record does not contain substantial evidence to support the arbitrators’ finding that the defects in the truck’s paint substantially impaired its value to the defendant within the meaning of § 42-179 (d). Although we agree that § 42-179 (d) incorporates a mixed subjective and objective standard, we do not agree that the record lacks substantial evidence to support a finding that the defects in the truck’s paint substantially impaired its value to the defendant.

A

Inteipretation of the phrase “substantially impairs the . . . value of the motor vehicle to the consumer” in § 42-179 (d) is a matter of statutory construction. “Statutory construction is a question of law and therefore our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citation omitted; internal quotation marks omitted.) Jupiter Realty Co. v. Board of Tax Review, 242 Conn. 363, 367-68, 698 A.2d 312 (1997); Ferrigno v. Cromwell Development Associates, supra, 244 Conn. 195.

Our analysis begins with the language of § 42-179 (d). Section 42-179 (d) provides in relevant part: “If the manufacturer, or its agents or authorized dealers are unable to conform the motor vehicle to any applicable express warranty by repairing or correcting any defect or condition which substantially impairs the . . . value of the motor vehicle to the consumer . . . the manufacturer shall replace the motor vehicle . . . (Emphasis added.) The phrase “to the consumer” in § 42-179 (d) suggests that the needs and expectations of the individual consumer should be considered in a determination of whether a defect has substantially impaired the value of a vehicle. That language, therefore, suggests that the legislature intended to incorporate a subjective component into the determination of “substantial impairment” under § 42-179 (d).

Other language contained in § 42-179 (d), however, indicates that the standard for “substantial impairment” was intended to incorporate an objective component as well as a subjective component. Specifically, § 42-179 (d) provides that u[i]t shall be an affirmative defense to any claim under this section . . . that an alleged nonconformity does not substantially impair such . . . value . . . .” (Emphasis added.) The statutory provision that permits a manufacturer to show that the value of a vehicle has not, in fact, been substantially impaired, suggests that the subjective opinion of the consumer is not dispositive. If the standard were completely subjective, the manufacturer would almost never be able to prove lack of “substantial impairment,” and thus, the right to prove that the value of the vehicle had not been substantially impaired would be meaningless. “We presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions. . . . Accordingly, care must be taken to effectuate all provisions of the statute.” (Citations omitted; internal quotation marks omitted.) Ferrigno v. Cromwell Development Associates, supra, 244 Conn. 196; State v. Szymkiewicz, 237 Conn. 613, 621, 678 A.2d 473 (1996); see State v. Spears, 234 Conn. 78, 93, 662 A.2d 80, cert. denied, 516 U.S. 1009, 116 S. Ct. 565, 133 L. Ed. 2d 490 (1995).

Moreover, the legislative history of the lemon law and the circumstances surrounding its enactment indicate that the phrase “substantially impairs . . . the value of the motor vehicle to the consumer” in § 42-179 (d) was not intended to be read literally so as to incorporate only a.subjective standard. The initial version of House Bill No. 5729, the bill that eventually was enacted as Public Acts 1982, No. 82-287, and codified as General Statutes § 42-179, provided: “If the manufacturer . . . [is] unable to conform the motor vehicle to any applicable express warranty . . . after a reasonable number of [repair] attempts, the manufacturer shall replace the motor vehicle . . . .” General Statutes (Rev. to 1983) § 42-179 (c). Thus, in order for a defect to constitute a nonconformity under the initial version of the bill, all that was required was a breach of an express warranty. Rather than expose automobile manufacturers to claims based solely on defects that, although trivial, constituted a breach of an express warranty, House Bill No. 5729 was revised to include the “substantial impairment” provision that exists currently.

During the committee hearings on the revised bill, Representative John J. Woodcock, the bill’s sponsor, made two references to the addition of the “substantial impairment” language. 25 H.R. Proc., Pt. 10, 1982 Sess., pp. 3115-16. First, Representative Woodcock stated that the revised bill defined a nonconformity as “a defect or condition which substantially impairs the use of [sic] value of the motor vehicle.” Id., p. 3115. No mention was made of the effect of the impairment on the consumer, indicating that the term “substantial impairment” was not intended to be measured by a purely subjective standard. Second, Representative Woodcock stated that the issue of whether a nonconformity qualifies under the “substantial impairment” standard could be raised as an affirmative defense by the manufacturer. Id., p. 3115, remarks of Representative Woodcock (“the amendment creates affirmative defenses for the manufacturer which he may raise in response to a consumer complaint . . . [the manufacturer] can say there’s a defect which is unrepairable [but] is not a substantial defect, and therefore the presumption should not rule against him”). Thus, Representative Woodcock’s remarks supply further evidence that the legislature did not intend to adopt a completely subjective approach to determining “substantial impairment” under the lemon law.

Moreover, in the discussion of House Bill No. 5729 on the Senate floor, Senator Clifton A. Leonhardt remarked: “In my judgment, the genius of this bill is that it really takes [into account] the commonsense notion that a consumer should be able to return a lemon. I think we all know by commonsense what a lemon is . . . . So I really think the genius of this bill is to take the commonsense notion of fairness that [the consumer] shouldn’t be stuck with a lemon [and translate] that concept of a lemon into the precision of tort law.” (Emphasis added.) 25 S. Proc., Pt. 9, 1982 Sess., p. 2747. Senator Leonhardt’s remarks that the concept of “commonsense” underlies the definition of a lemon in House Bill No. 5729 manifests an intention to incorporate objective criteria into the determination of “substantial impairment.”

We note also that the phrase “substantially impairs the . . . value of the motor vehicle to the consumer” in § 42-179 (d) is analogous to aprovision of the Uniform Commercial Code. Specifically, in the related context of revocation of acceptance of goods pursuant to General Statutes § 42a-2-608, we previously have interpreted the phrase “[t]he buyer may revoke his acceptance of a lot . . . whose nonconformity substantially impairs its value to him . . . .” (Emphasis added.) See Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 346-47, 525 A.2d 57, following remand, 205 Conn. 479, 533 A.2d 1211 (1987); Conte v. Dwan Lincoln Mercury, Inc., 172 Conn. 112, 120-21, 374 A.2d 144 (1976). In interpreting that statute, we have stated that “[t]he test for substantial impairment is both subjective and objective; it focuses first, on the needs and circumstances of the particular buyer . . . and then considers whether, from an objective standpoint, the value of the goods to the buyer has in fact been impaired.” Web Press Services Corp. v. New London Motors, Inc., supra, 346-47. We consistently have stated that the legislature is presumed to have knowledge of all existing statutes and the effect that its own action or inaction may have on them. Connecticut Light & Power Co. v. Texas-Ohio Power, Inc., 243 Conn. 635, 648-49, 708 A.2d 202 (1998); Fair Cadillac-Oldsmobile Isuzu Partnership v. Bailey, 229 Conn. 312, 321, 640 A.2d 101 (1994). Moreover, during the joint committee hearings on House Bill No. 5729, Representative Woodcock made direct reference to the “substantial impairment” provision of § 42a-2-608, as well as our decision in Conte v. Dwan Lincoln-Mercury, Inc., supra, 112, in which we applied § 42a-2-608 to the attempted revocation of acceptance of an allegedly defective motor vehicle. Conn. Joint Standing Committee Hearings, General Law, Pt. 2, 1982 Sess., pp. 234-35. Thus, the legislature's use in § 42-179 of “substantial impairment” language that mirrors the language of § 42a-2-608 indicates that the legislature intended to create parallel standards.

Finally, common sense dictates that the legislature did not intend § 42-179 to incorporate a purely subjective standard. Such a standard inevitably would lead to absurd results by requiring manufacturers to replace vehicles that had only trivial defects, a result that clearly undermines the spirit and purpose of the lemon law. See id., p. 236 (lemon law designed to afford consumers reasonable remedy); id., p. 268 (lemon law not concerned with trivial defects). “It is ... a rule of statutory construction that those who promulgate statutes or rules do not intend to promulgate statutes or rules that lead to absurd consequences or bizarre results.” (Internal quotation marks omitted.) Ferrigno v. Cromwell Development Associates, supra, 244 Conn. 201; State v. DeFrancesco, 235 Conn. 426, 437, 668 A.2d 348 (1995).

We recognize that “the Lemon Law is a remedial statute that ought to be read broadly in favor of those consumers whom the law [was] designed to protect. But a recitation of that general principle merely begs the question of which consumers the Lemon Law was, in fact, designed to protect.” (Emphasis in original.) Cagiva North America v. Schenk, 239 Conn. 1, 14, 680 A.2d 964 (1996). Given the lemon law’s language, legislative history and close relationship to § 42a-2-608, we are not persuaded that its remedial purpose is broad enough to require a purely subjective standard for determining “substantial impairment.” We conclude, therefore, that under the lemon law the standard for determining whether a defect substantially impairs the use, safety or value of a motor vehicle to the consumer is both subjective and objective. The standard is subjective in that the fact finder first must examine the subjective desires, needs and circumstances of the particular consumer. In light of those desires, needs and circumstances, the fact finder then must make an objective determination as to whether the value of the motor vehicle to the consumer has, in fact, been substantially impaired. In making this determination, the fact finder must determine that the consumer’s subjective desires, needs and circumstances are reasonable.

B

Having articulated the standard for substantial impairment under the lemon law, we address the plaintiffs claim that the record does not contain substantial evidence to support a finding that the evident defects in the paint substantially impaired the truck’s value to the defendant.

During the arbitration hearing, the defendant testified that he takes great pride in the appearance of the vehicles that he owns and maintains the finish of those vehicles in factory condition. Moreover, he stated that appearance was a major factor in his decision to purchase a new truck rather than a used one. On the basis of that testimony, the arbitrators reasonably could have concluded that, had the defendant known of the defects in the paint before accepting delivery, he would not have purchased the truck, and that the statutory requirement of subjective substantial impairment had been satisfied.

Carver, the state’s technical expert, testified that, on a scale of one to ten, with ten representing the worst amount of damage, the damage to the truck constituted a three. Carver further stated that the paint defects could not be removed easily. Moreover, Carver corroborated the defendant’s contention that wet sanding and repainting the truck would remove its finish. Finally, Carver stated that the paint defects possibly could affect the resale value of the vehicle and that if the vehicle was not maintained meticulously, the affected areas could deteriorate further. Thus, on the basis of Carver’s testimony, the arbitrators reasonably could have concluded that the statutory requirement of objective substantial impairment had been satisfied.

We conclude, therefore, that the record contains substantial evidence to support a finding that the defects in the truck’s paint substantially impaired its value to the defendant within the meaning of § 42-179.

The judgment is affirmed.

In this opinion the other justices concurred.

       Unless otherwise indicated, all references herein to General Statutes §§ 42-179 through 42-186 are to the General Statutes as revised to 1995.

       Maritime is not a party to this action.

       General Statutes § 42-179 provides: “(a) As used in this chapter: (1) ‘Consumer’ means the purchaser, other than for purposes of resale, of a motor vehicle, a lessee of a motor vehicle, any person to whom such motor vehicle is transferred during the duration of an express warranty applicable to such motor vehicle, and any person entitled by the terms of such warranty to enforce the obligations of the warranty; and (2) ‘motor vehicle’ means a passenger motor vehicle or a passenger and commercial motor vehicle, as defined in section 14-1, which is sold or leased in this state.
      “(b) If a new motor vehicle does not conform to all applicable express warranties, and the consumer reports the nonconformity to the manufacturer, its agent or its authorized dealer during the period of two years following the date of original delivery of the motor vehicle to a consumer or during the period of the first eighteen thousand miles of operation, whichever period ends first, the manufacturer, its agent or its authorized dealer shall make such repairs as are necessary to conform the vehicle to such express warranties, notwithstanding the fact that such repairs are made after the expiration of the applicable period.
      “(c) No consumer shall be required to notify the manufacturer of a claim under this section and sections 42-181 to 42-184, inclusive, unless the manufacturer has clearly and conspicuously disclosed to the consumer, in the warranty or owner’s manual, that written notification of the nonconformity is required before the consumer may be eligible for a refund or replacement of the vehicle. The manufacturer shall include with the warranty or owner’s manual the name and address to which the consumer shall send such written notification.
      “(d) If the manufacturer, or its agents or authorized dealers are unable to conform the motor vehicle to any applicable express warranty by repairing or correcting any defect or condition which substantially impairs the use, safety or value of the motor vehicle to the consumer after a reasonable number of attempts, the manufacturer shall replace the motor vehicle with a new motor vehicle acceptable to the consumer, or accept return of the vehicle from the consumer and refund to the consumer, lessor and hen-holder, if any, as their interests may appear, the following: (1) The full contract price, including but not limited to, charges for undercoating, dealer preparation and transportation and installed options, (2) all collateral charges, including but not limited to, sales tax, license and registration fees, and similar government charges, (3) all finance charges incurred by the consumer after he first reports the nonconformity to the manufacturer, agent or dealer and during any subsequent period when the vehicle is out of service by reason of repair, and (4) all incidental damages as defined in section 42a-2-715, less a reasonable allowance for the consumer’s use of the vehicle. No authorized dealer shall be held hable by the manufacturer for any refunds or vehicle replacements in the absence of evidence indicating that dealership repairs have been carried out in a manner inconsistent with the manufacturers’ instructions. Refunds or replacements shall be made to the consumer, lessor and lienholder if any, as their interests may appear. A reasonable allowance for use shall be that amount obtained by multiplying the total contract price of the vehicle by a fraction having as its denominator one hundred thousand and having as its numerator the number of miles that the vehicle traveled prior to the manufacturer’s acceptance of its return. It shall be an affirmative defense to any claim under this section (1) that an alleged nonconformity does not substantially impair such use, safety or value or (2) that a nonconformity is the result of abuse, neglect or unauthorized modifications or alterations of a motor vehicle by a consumer.
      “(e) It shall be presumed that a reasonable number of attempts have been undertaken to conform a motor vehicle to the applicable express warranties, if (1) the same nonconformity has been subject to repair four or more times by the manufacturer or its agents or authorized dealers during the period of two years following the date of original delivery of the motor vehicle to a consumer or during the period of the first eighteen thousand miles of operation, whichever period ends first, but such nonconformity continues to exist or (2) the vehicle is out of service by reason of repair for a cumulative total of thirty or more calendar days during the applicable period, determined pursuant to subdivision (1) of this subsection. Such two-year period and such thirty-day period shall be extended by any period of time during which repair services are not available to the consumer because of a war, invasion, strike or fire, flood or other natural disaster. No claim shall be made under this section unless at least one attempt to repair a nonconformity has been made by the manufacturer or its agent or an authorized dealer or unless such manufacturer, its agent or an authorized dealer has refused to attempt to repair such nonconformity.
      “(f) If a motor vehicle has a nonconformity which results in a condition which is likely to cause death or serious bodily injury if the vehicle is driven, it shall be presumed that a reasonable number of attempts have been undertaken to conform such vehicle to the applicable express warranties if the nonconformity has been subject to repair at least twice by the manufacturer or its agents or authorized dealers within the express warranty term or during the period of one year following the date of the original delivery of the motor vehicle to a consumer, whichever period ends first, but such nonconformity continues to exist. The term of an express warranty and such one-year period shall be extended by any period of time during which repair services are not available to the consumer because of war, invasion, strike or fire, flood or other natural disaster.
      “(g) (1) No motor vehicle which is returned to any person pursuant to any provision of this chapter or in settlement of any dispute related to any complaint made under the provisions of this chapter and which requires replacement or refund shall be resold, transferred or leased in the state without clear and conspicuous written disclosure of the fact that such motor vehicle was so returned prior to resale or lease. Such disclosure shall be affixed to the motor vehicle and shall be included in any contract for sale or lease. The commissioner of motor vehicles shall, by regulations adopted in accordance with the provisions of chapter 54, prescribe the form and content of any such disclosure statement and establish provisions by which the commissioner may remove such written disclosure after such time as the commissioner may determine that such motor vehicle is no longer defective. (2) If a manufacturer accepts the return of a motor vehicle or compensates any person who accepts the return of a motor vehicle pursuant to subdivision (1) of this subsection such manufacturer shall stamp the words ‘MANUFACTURER BUYBACK’ clearly and conspicuously on the face of the original title in letters at least one-quarter inch high and, within ten days of receipt of the title, shall submit a copy of the stamped title to the department of motor vehicles. The department of motor vehicles shall maintain a listing of such buyback vehicles and in the case of any request for a title for a buyback vehicle, shall cause the words ‘MANUFACTURER BUYBACK’ to appear clearly and conspicuously on the face of the new title in letters which are at least one-quarter inch high. Any person who applies for a title shall disclose to the department the faft that such vehicle was returned as set forth in this subsection. (3) If a manufacturer accepts the return of a motor vehicle from a consumer due to a nonconformity or defect, in exchange for a refund or a replacement vehicle, whether as a result of an administrative or judicial determination, an arbitration proceeding or a voluntary settlement, the manufacturer shall notify the department of motor vehicles and shall provide the department with all relevant information, including the year, make, model, vehicle identification number and prior title number of the vehicle. The commissioner of motor vehicles shall adopt regulations in accordance with chapter 54 specifying the format and time period in which such information shall be provided and the nature of any additional information which the commissioner may require. (4) The provisions of this subsection shall apply to motor vehicles originally returned in another state from a consumer due to a nonconformity or defect in exchange for a refund or replacement vehicle and which a lessor or transferor with actual knowledge subsequently sells, transfers or leases in this state.
      “(h) All express and implied warranties arising from the sale of a new motor vehicle shall be subject to the provisions of part 3 of article 2 of title 42a.
      “(i) Nothing in this section shall in any way limit the rights or remedies which are otherwise available to a consumer under any other law.
      “(j) If a manufacturer has established an informal dispute settlement procedure which is certified by the attorney general as complying in all respects with the provisions of Title 16 Code of Federal Regulations Part 703, as in effect on October 1,1982, and with the provisions of subsection (b) of section 42-182, the provisions of subsection (d) of this section concerning refunds or replacement shall not apply to any consumer who has not first resorted to such procedure.”

       General Statutes § 42-181 provides in relevant part: “(a) The department of consumer protection, shall provide an independent arbitration procedure for the settlement, of disputes between consumers and manufacturers of motor vehicles which do not conform to all applicable warranties under the terms of section 42-179. . . .
      “(b) If any motor vehicle purchased at any time on or after October 1, 1984, or leased at any time on or after June 17, 1987, fails to conform to such applicable warranties as defined in said section 42-179, a consumer may bring a grievance to an arbitration panel . . . .”

       General Statutes § 52-418 provides in relevant part: “Vacating award, (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded theirpowers or so imperfectly executed them that amutual, final and definite award upon the subject matter submitted was not made. . . .”

       In Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, 212 Conn. 83, 96-97, 561 A.2d 917 (1989), we concluded that the substantial evidence test that governs judicial review of the factual findings of an administrative agency pursuant to the Uniform Administrative Procedure Act; General Statutes § 4-166 et seq.; did not govern judicial review of the factual findings of an arbitration panel pursuant to General Statutes (Rev. to 1989) § 42-181. In 1990, however, the legislature amended § 42-181 to provide that the administrative standard governs judicial review of factual findings of lemon law arbitration panels. See Public Acts 1990, No. 90-8, § 1; see also 33 H.R. Proc., Pt. 4, 1990 Sess., p. 1065.

       The defendant appears to concede that, in this case, the factory paint specifications would satisfy the manufacturer’s express warranty specifications as required by § 42-179.

       At oral argument before this court, the plaintiff conceded that the arbitrators reasonably could have determined that the attempted replacement of the truck’s hood constituted the single repair attempt required by § 42-179 (e). As a result, it is undisputed that the defendant met the statutory prerequisite of a single repair attempt for instituting an arbitration proceeding.

       The bill that ultimately amended § 42-179 (e) to provide that at least one repair attempt must be made before a consumer may initiate a lemon law arbitration proceeding was entitled “An Act Implementing Recommendations of the Legislative Program Review and Investigations Committee Concerning the New Automobile Warranties Program.” See Public Acts 1989, No. 89-173; Conn. Joint Standing Committee Hearings, Program Review, Pt. 1, 1989 Sess., p. 9.

       Section 42-181 (c), the statutory provision that governs our review of lemon law arbitration proceedings, provides in relevant part: “If the arbitrators fail to state findings or reasons for the award, or the stated findings or reasons are inadequate, the court shall search the record to determine whether a basis exists to uphold the award. . . .” Consequently, we review the record in order to determine, in accordance with the appropriate subjective and objective standard, whether the arbitration panel reasonably could have determined that the defects in the truck’s paint substantially impaired its value to the defendant.


source: Caselaw Access Project

author: BORDEN, J.

license: Public Domain

text:
    JOSEPH GRIGERIK v. GARY SHARPE
    (SC 15779)
    Callahan, C. J., and Borden, Berdon, Norcott and Katz, Js.

      Argued September 22
    officially released December 22, 1998

      Timothy Brignole, for the appellant-appellee (plaintiff).

      Lorinda S. Coon, with whom was Elizabeth Fairbanks Flynn, for the appellants-appellees (defendants).
   Opinion

BORDEN, J.

The dispositive issues in this certified appeal are: (1) whether the seven year limitation period of General Statutes § 52-584a, or the two year limitation period of General Statutes § 52-584, 2 applies to this action; and (2) whether it is the intent of the promisee of a contractual obligation, rather than the intent of both of the parties to the contract, which determines whether a third party is a beneficiary of the contract in question. The plaintiff, Joseph Grigerik, appeals, and the defendants, Gary Sharpe and Angus McDonald-Gary Sharpe and Associates, Inc., cross appeal from the judgment of the Appellate Court. The Appellate Court concluded that: (1) as to the plaintiffs negligence count against the defendants, the two year statute of limitations of § 52-584 applied; and (2) as to the breach of contract count against the defendants by the plaintiff, as a third party beneficiary of the contract, the trial court improperly instructed the jury that it must find that both the contracting parties intended the plaintiff to be a third party beneficiary of the contract. We conclude that: (1) the seven year limitations period of § 52-584a applies to this action; and (2) it is the intent of both parties to a contract that determines whether a third party is a beneficiary of a contract. Accordingly, we reverse the judgment of the Appellate Court.

The plaintiff brought this action against the defendants in two counts. **4 The first count alleged a breach of the contract between the defendants and Edward Lang, the plaintiffs predecessor in title to an unimproved plot of land in Killingworth. Pursuant to the contract, the defendants had agreed to perform professional engineering services, namely, certain soil testing and site planning necessary to the construction of a septic system that would comply with state and local regulations. The plaintiff claimed to be a third party beneficiary of that contract. The second count was based on the negligence of the defendants in performing these professional services.

With respect to the negligence count, the defendants pleaded, as a special defense, the two year limitations period of § 52-584. The trial court ruled, however, that the negligence action was not barred by that provision. With respect to the breach of contract count, the trial court instructed the jury that, in order for the plaintiff to recover as a third party beneficiary to the contract, he was required to establish that he was either an intended, a contemplated, or a foreseeable beneficiary of the contract between Lang and the defendants. In response to specific interrogatories, the jury found that, although the plaintiff was neither an intended nor a contemplated beneficiary, he was a foreseeable beneficiary of the contract. The jury found for the plaintiff on both counts, and the trial court rendered judgment for the plaintiff on the verdict.

On the defendants’ appeal to the Appellate Court, the court concluded that the two year statute of limitations provided by § 52-584 applied so as to bar the plaintiffs negligence count. With respect to the breach of contract count, the Appellate Court concluded that the trial court’s instructions were flawed in two respects: first, in favor of the plaintiff, by permitting him to recover as a foreseeable, rather than an intended beneficiary of the contract; second, in favor of the defendants, by requiring that both parties, rather than just the promisee of the contractual obligation in question, intended to benefit the plaintiff. Accordingly, the Appellate Court reversed the judgment of the trial court, ordered that judgment be rendered for the defendants on the negligence count, and ordered a new trial on the breach of contract count. ****6 Grigerik v. Sharpe, 45 Conn. App. 775, 798, 699 A.2d 189 (1997). Both the plaintiff and the defendants sought certification to appeal, and this appeal followed.

On his appeal regarding the negligence count, the plaintiff claims that the Appellate Court improperly concluded that the two year limitation period of § 52-584 applied so as to bar the action. On their cross appeal regarding the breach of contract count, the defendants claim that the Appellate Court improperly concluded that the intent of the promisee only, rather than the intent of both contracting parties, determines whether there is a third party beneficiary to a contract. We agree with the contentions of both the plaintiff and the defendants.

The Appellate Court opinion sets forth the following facts that the jury reasonably could have found. “In 1983, Edward Lang purchased a tract of undeveloped land on Reservoir Road in the town of Killingworth. The property contained a hill, a marshy area, trees and many vines and bushes. Lang removed some of the trees and bushes and also obtained the release of a power line easement that the utility company no longer needed. Because the land was adjacent to a reservoir, it was within a designated watershed area.

“In 1985, Lang negotiated with the plaintiff for the sale of the land. The plaintiff offered $9000 for the property ‘as is.’ He told Lang, however, that he would pay $16,000 if Lang would do the work necessary to obtain the town’s approval of the land as a building lot. Lang agreed to do so. Both of them accompanied the sanitarian for Killingworth when he examined the property. He told them that, because the land was within a watershed district, they needed an engineer to prepare a site plan for drainage.

“Lang hired the defendant Gary Sharpe, a professional engineer, and the corporate defendant [Angus McDonald-Gary Sharpe and Associates, Inc.] to prepare a site plan, to design a subsurface sanitary sewage disposal system and to perform the necessary soil testing. Lang told Sharpe that he needed the site plan in order to obtain approval of the land as a building lot and that he had a buyer for the land if the town granted approval. Sharpe did some of the work necessary for the application and various employees of his firm performed the remainder. They completed their work on the site plan on October 16, 1985. After receiving the site plan from Sharpe, Lang presented it to the Killingworth inland wetlands commission, which granted its approval. On November 19,1985, Lang sold the property to the plaintiff for $16,000, as they had agreed.

“In the spring of 1986, the plaintiff cleared the land and applied to the town sanitarian for the permits necessary to begin construction of a house in August. The new town sanitarian for Killingworth denied the plaintiffs application for a building permit even though his predecessor had told the plaintiff that the septic system would be approved. The new sanitarian said he was concerned about the suitability of the soil conditions and whether the percolation tests had been performed in the presence of the previous sanitarian. He told the plaintiff that additional percolation tests would have to be performed by an engineer in the presence of a representative of the state department of health (department) during the following spring when the soil would be saturated.

“When the percolation tests were performed on March 5, 1987, it was concluded that a curtain drain would have to be installed on the land in order to control the seasonally high groundwater. After the plaintiff had constructed the curtain drain, more percolation tests were completed and submitted to the department. On May 20, 1987, that department informed the plaintiff that the tests indicated that the land was unsuitable for a septic sewage disposal system. Additional percolation testing was done in the spring of 1989 in the presence of a department representative, who determined that the tests indicated that minimum public health standards for a septic system could not be met and that the building permits could not be issued.

“The plaintiff commenced this action by service on Sharpe on September 20, 1989, and, pursuant to a motion to cite in an additional defendant, his corporation was served on June 5, 1991. After a trial, the jury found the issues for the plaintiff and rendered a verdict for damages of $44,024, including interest, on both the negligence and breach of contract counts of the complaint.” Grigerik v. Sharpe, supra, 45 Conn. App. 777-79.

I

We first consider the plaintiffs claim, asserted in his appeal; see footnote 7 of this opinion; that the Appellate Court improperly concluded that § 52-584 applied to this action against a professional engineer for negligent soil testing and the negligent design of a site plan. The plaintiff claims that the seven year statute of limitations of § 52-584a; see footnote 1 of this opinion; rather than the two year statute of limitations of § 52-584; see footnote 2 of this opinion; governs the negligence portion of this action. The defendants contend that the Appellate Court properly determined that § 52-584 applies and that the negligence count was therefore barred by the statute of limitations. We conclude that § 52-584a provides the statute of limitations applicable to the plaintiffs negligence claim and that, therefore, the claim was timely brought.

“The process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutoiy language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citation omitted; internal quotation marks omitted.) United Illuminating Co. v. New Haven, 240 Conn. 422, 431, 692 A.2d 742 (1997).

In 1986, the Appellate Court was presented with the issue of whether § 52-584 or General Statutes (Rev. to 1985) § 52-584a applied to a negligence action against an architect and a professional engineer. R.A. Civitello Co. v. New Haven, 6 Conn. App. 212, 504 A.2d 542 (1986). Focusing on the language of the statute as it existed in 1986, prior to being amended later that same year, particularly on the language found in subsection (a) of § 52-584a — “[notwithstanding any provision of the general statutes,” and in subsection (d) of § 52-584a — “[n]othing in this section shall be construed to extend the period prescribed by the laws of this state for the bringing of any action,” the Appellate Court held that “[t]he intent of the seven year statute, as its clear mandate, was to create a seven year absolute maximum on actions against architects and engineers, based upon the finite barrier of substantial completion . . . while leaving any other lesser limitations in effect.” (Emphasis added.) Id., 229. Specifically, although the Appellate Court recognized that it could “be argued that the fact that contract and tort actions are specifically mentioned in General Statutes [Rev. to 1985] § 52-584a evidences an intent that the new seven year statute be the statute of limitations for actions involving architects and engineers”; id., 224; the court determined that this inference was rebutted “by the opening phrase of General Statutes [Rev. to 1985] § 52-584a which states notwithstanding any provision of the General Statutes, by the language of [General Statutes (Rev. to 1985)] § 52-584a (d), and by the entire background of [General Statutes (Rev. to 1985)] § 52-584a.” (Internal quotation marks omitted.) Id. The Appellate Court held, therefore, that § 52-584, rather than General Statutes (Rev. to 1985) § 52-584a, applied to the city of New Haven’s third party action against an architect and a structural engineering company.

R.A. Civitello Co. was decided in February, 1986. By April, 1986, however, the legislature already had considered and passed Public Acts 1986, No. 86-266, § 2 (P.A. 86-266). Both the language and the legislative history of that enactment indicate the legislature’s intent to overturn R.A. Civitello Co. and to provide a seven year statute of limitations for certain actions against architects and engineers, rather than a two year statute of limitations coupled with a seven year statute of repose. Public Act 86-266 amended General Statutes (Rev. to 1985) § 52-584a by deleting the introductory phrase, “[notwithstanding any provision of the general statutes,” from subsection (a), and the language of subsection (d), “[n]othing in this section shall be construed to extend the period prescribed by the laws of this state for the bringing of any action.” The legislature, therefore, amended General Statutes (Rev. to 1985) § 52-584a so as to remove the precise language relied upon by the Appellate Court in R.A. Civitello Co. to conclude that that statute was solely a statute of repose. As a result, the language of § 52-584a; see footnote 1 of this opinion; now contains no reference to any other statute, and commences with language that is similar to the language that begins other statutes that we previously have construed as operating, at least in part, as statutes of limitations. See, e.g., General Statutes § 52-577, governing actions based in tort (“[n]o action founded upon atort shall be brought”); General Statutes § 52-577a, governing actions based on product liability (“[n]o product liability claim . . . shall be brought”); General Statutes § 52-576, governing actions based in contract (“[n]o action for an account . . . shall be brought”). Moreover, in discussing the proposed amendments to General Statutes (Rev. to 1985) § 52-584a, Representative Martin M. Looney stated: “We currently have in our statutes, Mr. Speaker, a seven year statute of limitations for actions against architects and engineers involving deficiencies in design and planning contract administration and so on. What this amendment would do is ensure that seven year statute would apply and that a shorter statute such as the three year general negligence standard or the six year statute on contract matters would not be superimposed on the statute regarding architects. This is to correct a problem that was highlighted, Mr. Speaker, in the case of [R.A. Civitello Co. v. New Haven, supra, 6 Conn. App. 212] decided by the Appellate Court earlier this year . . . .” (Emphasis added.) 29 H.R. Proc., Pt. 11, 1986 Sess., pp. 4127-28. Finally, commenting on the changes to General Statutes (Rev. to 1985) § 52-584a resulting from P.A. 86-266, Senator Kenneth T. Hampton stated: “House Amendment ‘A’ adds the provision changing the statute of limitations to seven years in cases where the statute of limitations were fewer than seven years to apply for civil actions against architects and engineers.” 29 S. Proc., Pt. 9, 1986 Sess., p. 3072.

Our conclusion that § 52-584a constitutes a seven year statute of limitations for certain actions against architects and engineers, however, does not end our inquiry. The defendants argue that, as the Appellate Court concluded, § 52-584a does not apply to this action because there was no “improvement” to real property, as that phrase is used in the statute, from which the seven year period could begin to run. In the defendants’ view, in order for there to have been an “improvement” so as to trigger the applicability of the statute, there must have been a building erected as a result of the architect’s or engineer’s services. The plaintiff responds that § 52-584a applies to all civil actions against architects and engineers within the scope of their professional services, irrespective of whether they resulted or were intended to result in a building or structure, and, in the alternative, that the soil testing and design of the septic system in this case constituted an improvement as contemplated by the statute. Although we disagree with the breadth of the plaintiffs arguments, we also disagree with the narrowness of the defendants’ arguments. We conclude that the negligence at issue in this case related to an improvement as contemplated by the statute and that, under the circumstances of this case, § 52-584a applies.

Section 52-584a (a) provides in relevant part: “No action or arbitration, whether in contract, in tort, or otherwise, (1) to recover damages (A) for any deficiency in the design, planning, contract administration, supervision, observation of construction or construction of an improvement to real property . . . shall be brought . . . more than seven years after substantial completion of such improvement.” (Emphasis added.) Moreover, the statute contemplates a completed “improvement” to real property in its principal application. Section 52-584a (c) provides in relevant part that “an improvement to real property shall be considered substantially complete when (1) it is first used by the owner or tenant thereof or (2) it is first available for use after having been completed in accordance with the contract or agreement covering the improvement

“In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.” General Statutes § 1-1 (a). The phrase “improvement to real property” is a phrase that has acquired a particular meaning in the law. Without attempting to define the phrase in all its possible nuances and applications, we have little difficulty in concluding that an “improvement to real property,” as commonly understood in the law, “[generally has reference to buildings, but may also include any permanent structure or other development [of the real property in question].” Black’s Law Dictionary (6th Ed. 1990). Consistent with that understanding, we have defined an improvement to real property as an alteration or development of the property in order to enhance or promote its use for a particular purpose. Metropolitan District v. Barkhamsted, 199 Conn. 294, 302, 507 A.2d 92 (1986). Thus, an “improvement to real property” as used in § 52-584a ordinarily requires some physical addition to or alteration of the property in question in order to enhance or promote its use for a particular purpose.

In the ordinary case, therefore, the seven year statute of limitations begins to run from the date of the substantial completion of the improvement for which the architect or engineer performed the services. In this case, therefore, had the proposed septic system that was the subject of the defendants’ services been installed, the seven years would have begun to run from the date when the system was first used or available for use. The case before us, however, presents the question of whether § 52-584a applies to a situation in which the defect in the professional services rendered was discovered before the intended improvement was begun, and the reason that the improvement was not and could not be effectuated was precisely because of that defect.

“When two constructions are possible, courts will adopt the one which makes the [statute] effective and workable, and not one which leads to difficult and possibly bizarre results. . . . We consider the statute as a whole with a view toward reconciling its parts in order to obtain a sensible and rational overall inteipretation.” (Internal quotation marks omitted.) Butler v. Hartford Technical Institute, Inc., 243 Conn. 454, 462, 704 A.2d 222 (1997); see Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 26-27, 717 A.2d 77 (1998) (“[i]n order to determine the meaning of a statute, we must consider the statute as a whole when reconciling its separate parts in order to render a reasonable overall interpretation”). It would be irrational to conclude that, in a case such as this, the two year period of § 52-584 applied so that the injured party would have less time to bring his cause of action than if the improvement had been effectuated and the defect discovered after the substantial completion of the intended improvement. Thus, we conclude that, where the improvement to real property contemplated by the architect’s or engineer’s services is not completed because of the defect complained of, § 52-584a, and not § 52-584, applies to the plaintiffs cause of action.

We recognize that our conclusion that § 52-584a applies where an improvement is planned but never effectuated could result in a situation in which the limitations period might not begin to run until well beyond seven years after the alleged negligence. Because that is not the situation before us, however, we leave the determination of precisely when the seven year limitations period would begin to run to a case that presents that question. In the present action, the negligence occurred during October, 1985, and the plaintiff commenced this action in September, 1989, less than seven years after final completion of the allegedly defective design. Thus, under any reading of the statute, the action was timely. We conclude, therefore, that the negligence count was not barred by any applicable statute of limitations.

II

We next consider the claim raised in the defendants’ cross appeal; see footnote 7 of this opinion; that, regarding the plaintiffs breach of contract count, the Appellate Court improperly concluded that it is the intent of the promisee only, rather than the intent of both contracting parties, that determines whether a third party has enforceable rights under a contract. As noted earlier, the jury found that the plaintiff was a foreseeable third party beneficiary of the contract between the defendants and Lang, and returned a verdict in favor of the plaintiff on the plaintiffs breach of contract count.

The plaintiff argues that the Appellate Court properly concluded that, in Stowe v. Smith, 184 Conn. 194, 441 A.2d 81 (1981), we had “changed the law” regarding the rights of third parties to enforce rights under a contract, and that “a mutual intent of the promisor and promisee is no longer necessary for a beneficiary to have a right to enforce the contract.” Grigerik v. Sharpe, supra, 45 Conn. App. 787. Concluding that the trial court improperly had instructed the jury on the breach of contract issue, the Appellate Court reversed the judgment and remanded the case to the trial court for a new trial on the breach of contract count. Id., 789. We disagree with the plaintiff and the Appellate Court that the law governing the contract rights of third party beneficiaries has been changed, by Stowe or any other decision of this court, and we conclude that the intent of both parties to a contract determines whether a third party has contract rights as a third party beneficiary. We also conclude, based on the jury’s responses to certain interrogatories, that the jury conclusively found that the plaintiff was not a third party beneficiary of the contract in question. Accordingly, we reverse the judgment of the Appellate Court and direct that judgment be rendered for the defendants on the breach of contract count.

This claim originated with the defendants’ challenge in the Appellate Court to: (1) the trial court’s instructions to the jury regarding the determination of whether a third party beneficiary relationship existed between the plaintiff and the defendants; see footnote 5 of this opinion; and (2) the trial court’s subsequent failure to grant the defendants’ motion to set aside the verdict, following the jury’s express determination as evidenced by its responses to certain interrogatories, that the contracting parties had not intended to benefit the plaintiff. The Appellate Court agreed with the defendants that the jury instructions were flawed and prejudiced the defendants because they permitted the plaintiff to recover as merely a foreseeable beneficiary of the contract. The court also concluded, however, contrary to the defendants’ position, that the trial court’s flawed instructions prejudiced the plaintiff because they failed to instruct the jury “that it was the intent of Lang, the promisee, that should determine whether the plaintiff was a third party beneficiary.” On appeal to this court, the defendants maintain that the Appellate Court’s judgment ordering a new trial on the breach of contract count was based on an incorrect assessment of the law. We agree.

The traditional rule requiring that courts consider the intentions of both parties in construing a contract is well settled. Lar-Rob Bus Corp. v. Fairfield, 170 Conn. 397, 406-07, 365 A.2d 1086 (1976) (“[a] contract is to be construed according to what may be assumed to have been the understanding and intention of the parties”); Amalgamated Assn. v. Connecticut Co., 142 Conn. 186, 192, 112 A.2d 501 (1955) (“[i]n interpreting any contract we must seek the intent of the parties expressed therein”); Davis v. Davis, 119 Conn. 194, 201, 175 A. 574 (1934) (“[i]t is an accepted principle that where two parties go through the form of entering into a contract, both understanding that there is no intent thereby to incur legal obligations, no contract is in fact created”). This rule allows parties to enter into contractual arrangements with the confidence that they subsequently will not find themselves legally bound to unknown or unanticipated obligations.

The law regarding the creation of contract rights in third parties in Connecticut is equally well settled. In Knapp v. New Haven Road Construction Co., 150 Conn. 321, 325, 189 A.2d 386 (1963), we quoted Colonial Discount Co. v. Avon Motors, Inc., 137 Conn. 196, 201, 75 A.2d 507 (1950), and reaffirmed that “[t]he ultimate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] and . . . that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties.” (Emphasis added; internal quotation marks omitted.) Although we explained that “it is not in all instances necessary that there be express language in the contract creating a direct obligation to the claimed third party beneficiary”; Knapp v. New Haven Road Construction Co., supra, 326; we emphasized that the only way a contract could create a direct obligation between a promisor and a third party beneficiary “would have to be, under our rule, because the parties to the contract so intended.” Id.; see also Congress & Daggett, Inc. v. Seamless Rubber Co., 145 Conn. 318, 324, 142 A.2d 137 (1958); Pavano v. Western National Ins. Co., 139 Conn. 645, 648, 96 A.2d 470 (1953); Colonial Discount Co. v. Avon Motors Inc., supra, 200; Byram Lumber & Supply Co. v. Page, 109 Conn. 256, 260, 146 A. 293 (1929).

The requirement that both contracting parties must intend to confer enforceable rights in a third party rests, in part at least, on the policy of certainty in enforcing contracts. That is, each party to a contract is entitled to know the scope of his or her obligations thereunder. That necessarily includes the range of potential third persons who may enforce the terms of the contract. Rooting the range of potential third parties in the intention of both parties, rather than in the intent of just one of the parties, is a sensible way of minimizing the risk that a contracting party will be held liable to one whom he neither knew, nor legitimately could be held to know, would ultimately be his contract obligee.

We recently reaffirmed this dual intent standard in Gateway Co. v. DiNoia, 232 Conn. 223, 654 A.2d 342 (1995). Citing to Knapp and numerous analogous cases, we held that “[t]he proper test to determine whether a lease creates a third party beneficiary relationship is whether the parties to the lease intended to create a direct obligation from one party to the lease to the third party.” (Emphasis in original.) Id., 231. The third party beneficiary issue before this court in Gateway Co. was whether the trial court correctly had focused on the intent of the parties to confer a benefit on a plaintiff when evaluating the plaintiffs claim as a third party beneficiary under the contract. Id. We held that “[t]he intent to confer a benefit is irrelevant to the determination of whether [the plaintiff] was a third party beneficiary”; id.; rather, the appropriate inquiry is whether “theparties . . . intended to create a direct obligation from one party ... to the third party.” (Emphasis added.) Id. Although it was not necessary, in Gateway Co., for us specifically to consider whether the intent of one or both contracting parties is relevant to the determination of third party beneficiary rights, our discussion was based expressly on the premise that it is the intent of both parties to a contract that determines these rights. Id.

In Stowe v. Smith, supra, 184 Conn. 194, decided fourteen years prior to Gateway Co., this court had considered a cause of action brought by a plaintiff against the attorney who had made a mistake in drafting the plaintiffs deceased mother’s will. As a result of this mistake, the will in existence at the time of the mother’s death incorrectly provided “that when the plaintiff attained the age of fifty or upon his earlier death the principal of the trust would be distributed to his issue.” Id., 195. The plaintiffs deceased mother actually had instructed that the will provide “that one-half of her estate be held in trust for the plaintiff; that when the plaintiff attained the age of fifty the assets of the trust would be distributed to him; but that upon the plaintiffs death prior to attaining the age of fifty, the assets of the trust would be distributed to the plaintiffs issue.” Id. According to the complaint, “[t]he defendant [had] informed the mother that he had prepared the will in accordance with her instructions including, specifically, the exact provision she had requested for the plaintiff.” Id.

To the extent that a third party to whom a promisor had made no express commitment was held to have stated a cause of action, Stowe plausibly could be interpreted as having altered Connecticut law regarding the intent necessary for a third party beneficiary to have enforceable rights under a contract. We conclude, however, that the holding in Stowe was consistent with our prior decisions regarding the intent necessary for a third party to possess rights under a contract and, therefore, that the plaintiffs and the Appellate Court’s reliance on Stowe is misplaced.

Specifically at issue in Stowe was the sufficiency of the plaintiffs complaint. The complaint had alleged that “the testatrix and the defendant intended that the defendant, by his agreement to prepare [the testatrix’s] will in accordance with her instructions, would assume a direct obligation to the intended beneficiaries of the testatrix.” Id., 196. Thus, the underlying premise of the complaint was that both contracting parties intended that the plaintiff would have enforceable rights under the contract. The question before the court was not whether a dual or singular intent was controlling. The question was, instead, the validity of the attorney’s argument “that as a matter of law a promisor cannot intend to assume a direct obligation to a third party unless the promisor’s performance is to be rendered directly to that party.” Id., 197. We rejected that argument, and held that “ [contracts for the benefit of a third party are enforceable without any requirement that the promisor’s performance be rendered directly to the intended beneficiary”; id.; and that the plaintiff had enforceable rights under the contract. Id., 198.

Indeed, in Stowe we began our analysis of the issue by reaffirming the traditional rule governing the creation of third party beneficiary rights under Connecticut law. “We have stated that a third party seeking to enforce a contract must allege and prove that the contracting parties intended that the promisor should assume a direct obligation to the third party.” (Emphasis added.) Id., 196. It is true that, in a footnote to this sentence, we referred to the differing views of Professors Corbin and Williston. Contrary to the plaintiffs assertion, however, we do not read that footnote as adopting these views. In fact, the footnote is, at least in part, addressed to the intent necessary for a third party to claim rights as a donee beneficiary, the situation presented in Stowe.

Moreover, we disagree with Professor Corbin’s view that the concept of “intent” is too “obscure and elusive” to be helpful in determining the contract rights of third parties. 4 A. Corbin, Contracts (1951) § 776, pp. 14-15. We traditionally have relied on the intent of the parties to determine whether a contract has been formed, as well as to determine the meaning of the terms of the contract. See Davis v. Davis, supra, 119 Conn. 194 (determining whether contract of marriage intended); see also Amalgamated Assn. v. Connecticut Co., supra, 142 Conn. 186 (interpreting contractual phrase according to intent of parties); Finlay v. Swirsky, 103 Conn. 624, 635, 131 A. 420 (1925) (same). We are unpersuaded, therefore, that the concept of intent is any more elusive in the context of determining whether third parties have enforceable rights under the contract.

In support of the view that the presence of a third party beneficiary issue is determined solely by the intention of the promisee, the Appellate Court also relied on 2 Restatement (Second), Contracts § 302 (1981), and concluded that “[t]he notion that the promisor and promisee must share the same intent is at variance with most authorities.” Grigerik v. Sharpe, supra, 45 Conn. App. 784. Our reading of § 302 of the Restatement (Second) does not support that reliance. That provision provides in relevant part: “Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and . . . the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.” 2 Restatement (Second), supra, § 302 (1) (b). Thus, the language of the Restatement (Second) suggests that the right to performance in a third party beneficiary is determined both by the intention of the contracting parties and by the intention of one of the parties to benefit the third party.

We decline, therefore, to alter our traditional test for determining whether a third party has enforceable contract rights. We reaffirm that the intent of both parties, rather than just one of the parties to a contract, determines whether a third party is to be afforded third party beneficiary status under a contract.

Applying this standard to the facts of the present case, we conclude that the plaintiff cannot prevail on his breach of contract claim. The jurors specifically found that the plaintiff had not proven that he was an intended beneficiary of the contract between Lang and the defendants. See footnote 15 of this opinion. The plaintiff, therefore, did not establish that it was the intent of the parties that he be a third party beneficiary of the contract.

Although the jury found that the plaintiff was a foreseeable beneficiary of the contract, we agree with the Appellate Court that foreseeability is a tort concept, and the fact that a person is a foreseeable beneficiary of a contract is not sufficient for him to claim rights as a third party beneficiary. To import the concept of foreseeability into the law governing contracts, which is premised “on the concept that mutual obligations entered into voluntarily should be enforced,” would significantly reduce contracting parties’ ability to control, through the negotiated exchange of promises and consideration, the scope of their contractual duties and obligations.

With respect to the negligence count, the judgment of the Appellate Court is reversed and the case is remanded to that court with direction to consider the defendants’ claim that the trial court abused its discretion in permitting the plaintiff to amend his complaint after the jury had been selected; in the event that the Appellate Court finds no abuse of discretion, that court is directed to affirm the judgment of the trial court on the negligence count. With respect to the breach of contract count, the judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand it to the trial court with direction to render judgment for the defendants on that count.

In this opinion the other justices concurred.

       General Statutes § 52-584a provides: “Actions against architect or professional engineer, (a) No action or arbitration, whether in contract, in tort, or otherwise, (1) to recover damages (A) for any deficiency in the design, planning, contract administration, supervision, observation of construction or construction of an improvement to real property; (B) for injury to property, real or personal, arising out of any such deficiency; (C) for injury to the person or for wrongful death arising out of any such deficiency, or (2) for contribution or indemnity which is brought as a result of any such claim for damages shall be brought against any architect or professional engineer performing or furnishing the design, planning, supervision or observation of construction or construction of such improvement more than seven years after substantial completion of such improvement.
      “(b) Notwithstanding the provisions of subsection (a) of this section, in the case of such an injury to property or the person or such an injury causing wrongful death, which injury occurred during the seventh year after such substantial completion, an action in tort to recover damages for such an injury or wrongful death may be brought within one year after the date on which such injury occurred, irrespective of the date of death, but in no event may such an action be brought more than eight years after the substantial completion of construction of such an improvement.
      “(c) For purposes of subsections (a) and (b) of this section, an improvement to real property shall be considered substantially complete when (1) it is first used by the owner or tenant thereof or (2) it is first available for use after having been completed in accordance with the contract or agreement covering the improvement, including any agreed changes to the contract or agreement, whichever occurs first.
      “(d) The limitation prescribed by this section shall not be asserted by way of defense by any person in actual possession or the control, as owner, tenant or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury or death for which it is proposed to bring action.”

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

       The original complaint named Gary Sharpe as the only defendant. Thereafter, the trial court granted the plaintiffs motion to add Angus McDonald-Gary Sharpe and Associates, Inc., as a parly defendant. Hereafter, we refer to both the individual defendant and the corporate defendant collectively as the defendants.

       The amended complaint contained four counts at the commencement of the trial. The first two counts, which named only Sharpe as the defendant, were withdrawn before the case was submitted to the jury, leaving two counts, each of which was directed against both defendants. All references to the first and second counts, therefore, refer to the third and fourth counts, respectively, of the amended complaint.

       The trial court instructed the jury as follows: “In light of all the evidence, you must determine whether [the plaintiff] was an intended, contemplated or foreseeable third party which was to derive a benefit from the contract for professional services entered into between the defendants and [Lang]. You must determine that it was intended, contemplated and foreseeable that any buyer of the property would derive a benefit from the contract or you may determine that it was intended, contemplated or foreseeable that [the plaintiff] specifically would derive a benefit from the contract. If you find that it was intended that [the plaintiff] was an intended, contemplated or foreseeable beneficiary to tire contract, then you must find that [the plaintiff] was a third party beneficiary to the contract. In summary, if you determine that [the plaintiff] was a third party beneficiary to the contract and that tire defendants breached the contract, then [the plaintiff] is entitled to the damages caused him as a result of the breach.”
      The defendants took exception to the charge, and requested a charge to the effect that a determination that both contracting parties intended Lang to have a direct obligation to the plaintiff was requisite to a finding for the plaintiff on the breach of contract count.

       The Appellate Court, therefore, declined to address an additional claim of the defendants, namely, that the trial court improperly had permitted the plaintiff to amend his negligence count at the beginning of the trial. As a result of our disposition of this appeal, it will be necessary for the Appellate Court to consider this claim upon the remand. In addition, the Appellate Corut rejected two evidentiary claims by the defendants, which are not involved in this appeal.

       We granted the plaintiffs petition for certification to appeal from the Appellate Court, limited to the following issue: “Did the Appellate Court correctly conclude that the two year statute of limitations (General Statutes § 52-584) applied to a civil action against aprofessional engineer for negligent soil testing and negligent design of a site plan rather than the seven year statute of limitations specifically applying to architects and professional engineers (General Statutes § 52-584a)?” Grigerik v. Sharpe, 243 Conn. 918, 701 A.2d 342 (1997).
      We granted the defendants’ cross petition for certification to appeal from the Appellate Court, limited to the following issues: “1. Did the Appellate Court properly hold that only the intent of the promisee, and not the intent of both contracting parties, is dispositive of the rights of an alleged third-party beneficiary of a contract?
      “2. Where the jury had specifically found that the plaintiff was neither an ‘intended’ nor ‘contemplated’ beneficiary of a contract between the defendant and another, but only a ‘foreseeable’ beneficiary of that contract, did the Appellate Court properly remand the case for retrial on the third-party beneficiary claim rather than entering judgment for the defendants?” Grigerik v. Sharpe, 243 Conn. 918, 918-19, 701 A.2d 342 (1997).

       The Appellate Court also noted that “Sharpe testified at trial that Lang had not informed him of his intention to sell the property.” Grigerik v. Sharpe, supra, 45 Conn. App. 778 n.2.

       Prior to the amendments of Public Acts 1986, No. 86-266, § 2, General Statutes (Rev. to 1985) § 52-584a provided: “(a) Notwithstanding any provision of the general statutes, no action or arbitration, whether in contract, in tort, or otherwise, (1) to recover damages (A) for any deficiency in the design, planning, contract administration, supervision, observation of construction or construction of an improvement to real property; (B) for injury to property, real or personal, arising out of any such deficiency; (C) for injury to the person or for wrongful death arising out of any such deficiency, or (2) for contribution or indemnity which is brought as a result of any such claim for damages shall be brought against any architect or professional engineer performing or furnishing the design, planning, supervision or observation of construction or construction of such improvement more than seven years after substantial completion of such improvement.
      “(b) Notwithstanding the provisions of subsection (a) of this section, in the case of such an ipjury to property or the person or such an injury causing wrongful death, which injury occurred during the seventh year after such substantial completion, an action in tort to recover damages for such an injury or wrongful death may be brought within one year after the date on which such injury occurred, irrespective of the date of death, but in no event may such an action be brought more than eight years after the substantial completion of construction of such an improvement.
      “(c) For puiposes of subsections (a) and (b) of this section, an improvement to real property shall be considered substantially complete when (1) it is first used by the owner or tenant thereof or (2) it is first available for use after having been completed in accordance with the contract or agreement covering the improvement, including any agreed changes to the contract or agreement, whichever occurs first.
      “(d) Nothing in this section shall be construed to extend the period prescribed by the laws of this state for the bringing of any action.

        “(c) The limitation prescribed by this section shall not be asserted by way of defense by any person in actual possession or the control, as owner, tenant or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury or death for which it is proposed to bring action.” (Emphasis added.)

       The Appellate Court also noted that at the time the original version of § 52-584a was enacted, two changes recently had altered modem tort law: the fall of the privity requirement; and the death of the “ ‘completed and accepted’ mle, [under which] the liability of a design professional or builder terminated when the improvement was finished and accepted by the owner.” R.A. Civitello Co. v. New Haven, supra, 6 Conn. App. 224. The court referred to certain legislative history indicating that it was the legislature’s concern over this increasing liability facing architects and professional engineers that had prompted the legislature to enact § 52-584a.

       Section 1 of P.A. 86-266 pertained to certain workers’ compensation claims against architects and engineers. It is not involved in this appeal.

       Legislative history supports this interpretation of the meaning of improvement under § 52-584a. In referring to § 52-584a (c), Representative William C. Leary assumed that an improvement was a building: “The first definition is a building used by an owner or a tenant thereof or secondly a building that is available for use after having been completed in accordance with the contract.” 13 H.R. Proc., Pt. 8, 1969 Sess., p. 3917.

       Moreover, adoption of the defendants’ suggested interpretation could provide incentives for wasteful behavior. For example, customers who discover a defective plan or design more than three years after a design is initiated would have no incentive to stop or delay the development of a structure in accordance with the defective plan. Stopping the construction would leave the consumer barred from bringing any action because the limitations period of § 52-584 would have lapsed, and § 52-584a would not apply because no structure had been effectuated.

       It is conceivable that, because of a defective design, the planned improvement is not effectuated and the property owner waits more than seven years to bring an action. That would be the situation, for example, if the plaintiff in this case had first commenced this action in September, 1995. In such a case, however, the doctrine of laches might apply to bar the action, even if § 52-584a did not apply.

       Three of the interrogatories posed to the jury related to the third party beneficiary issue. Those interrogatories and responses were as follows:
      “1. Did the plaintiff prove, by a fair preponderance of the evidence, that Joseph Grigerik was an intended third-party beneficiary to the contract between Edward Lang and Gary Sharpe in 1985?
      “No.
      “2. Did the plaintiff prove, by a fair preponderance of the evidence, that Joseph Grigerik was a contemplated third-party beneficiary to the contract between Edward Lang and Gary Sharpe in 1985?
      “No.
      “3. Did the plaintiff prove, by a fair preponderance of the evidence, that Joseph Grigerik was a foreseeable third-party beneficiary to the contract between Edward Lang and Gary Sharpe in 1985?
      “Yes.”

       “Commentators generally look upon the intent oí the promisee, if the promisee had any relevant intent, as governing whether a third party may enforce a contract as a donee beneficiary. Restatement (Second), Contracts, c. 6, Introductory Note and § 133 (Tent. Draft 1973); 2 Williston, Contracts (3d Ed.) § 356A, pp. 836, 839 n.19; 4 Corbin, Contracts § 776, p. 16.
      “Williston has criticized Colonial Discount Co. v. Avon Motors, Inc., [supra, 137 Conn. 196] and Byram Lumber & Supply Co. v. Page,, [supra, 109 Conn. 256] for proposing as a universal test of third party rights the intent of the contracting parties to impose on the promisor a direct obligation to the third party. 2 Williston, [supra] § 356A, pp. 838-39.
      “Corbin views the ideas that lie behind such terms as ‘purpose,’ ‘motive,’ and ‘intention’ as obscure and elusive. 4 Corbin, [supra] § 776, pp. 11-15. The problem before the courts, he says, ‘is to draw the line between those third persons whose benefit is so indirect and incidental that it is not sound policy to let them enforce the contract, and those other persons whose benefit is so direct and substantial and so closely connected with that of the promisee that it is economically desirable to let them enforce it. The law would profit greatly if the courts would concentrate upon this aspect of the problem and cease to state the questions merely in terms of the supposed “intent” of the parties.’ [Id.,] § 786, p. 95.” Stowe v. Smith, supra, 184 Conn. 196-97 n.1.

       Third party beneficiaries “can be loosely grouped into two classes; (1) donee beneficiaries, and (2) creditor (or obligee) beneficiaries. The third person is a donee beneficiary if the promisee who buys the promise expresses an intention and purpose to confer a benefit upon him as a gift in the shape of the promised performance. He is a creditor beneficiary if the promisee, or some other person, is under an obligation (a duty or a liability) to him and the contract is so made that the promised performance or the making of the executory contract itself will discharge that obligation.” 4 A. Corbin, Contracts (1951) § 774, pp. 6-7.
      Relying on the first Restatement of Contracts, the Appellate Court determined that because “Lang’s puipose in contracting with the defendants was to fulfill his obligation to the plaintiff to convey an approved building lot to him . . . [and] [t]he evident purpose of the transaction with the defendants was to enable Lang to sell his land to the plaintiff at the enhanced price agreed on for the lot,” the plaintiff would qualify as a creditor beneficiary of the contract. Grigerik v. Sharpe, supra, 45 Conn. App. 781. Because we conclude that both parties must intend an obligation on the part of the promisor to the promisee, and because the jury specifically found that the parties did not intend the promisor to have a direct obligation to the plaintiff, we need not address into which category of beneficiaries the plaintiff would fall.