text:
    James Wilson v. Security Insurance Company Security Insurance Company v. James Wilson
    (13614)
    (13618)
    Peteks, C. J., Healey, Callahan, Glass and Covello, Js.
    Argued November 1, 1989
    decision released January 30, 1990

      David M. Reilly, with whom was Peter B. Reilly, for the appellant-appellee (James Wilson).

      Susan M. Cormier, with whom was Wesley W. Horton, for the appellee-appellant (Security Insurance Company).
   Covello, J.

These consolidated appeals followed a judgment of the trial court confirming an uninsured motorist arbitration award. The principal issue is whether coverage for uninsured motorists contained in a fleet automobile liability policy may be combined or "stacked” in determining the total amount of coverage available to a single claimant. We conclude that such a result is beyond the reasonable expectations of the parties to the insurance contract and that "stacking” is inappropriate in the context of fleet automobile liability policies. We therefore remand the matter to the trial court with direction to modify the award accordingly.

The relevant facts are not in dispute. On January 1, 1982, the defendant, Security Insurance Company, had in force a business automobile liability policy insuring thirty-one vehicles owned by the town of Woodbridge. The policy contained an endorsement providing uninsured motorist coverage in the amount of $40,000 for each vehicle. Each vehicle was separately listed on the policy. The policy also contained a separate schedule of premiums for each vehicle that included a $3 or $5 charge per vehicle for the $40,000 of uninsured motorist coverage. The town paid a total of $137 for the uninsured motorist coverage on all thirty-one vehicles. The policy further contained a provision declaring that any sums payable under the uninsured motorists endorsement to the policy would be reduced by “[a]ll sums paid or payable under any workers’ compensation . . . law.”

On January 1,1982, the plaintiff, James Wilson, was a Woodbridge police officer who was assigned to operate a police car that was covered by the defendant’s policy. While on duty, and while standing in the vicinity of his parked vehicle, the plaintiff was struck and severely injured by a hit and run motorist.

Unable to agree on either the amount of uninsured motorist coverage available under the defendant’s policy or whether the plaintiff was even covered by the policy, the parties submitted the issues to arbitration. They stipulated that the total value of the plaintiff’s claim was $350,000, that the sum of $74,033.39 had been paid in workers’ compensation benefits, and that “stacking” of coverage, if applicable, was limited to the six vehicles assigned to the police department. The arbitration panel concluded that the plaintiff was a “Named Insured” under the policy and that its uninsured motorist provisions were applicable to him. The panel further concluded that, since the six vehicles were listed on the policy and a separate premium charged for each, “stacking” of the insurance coverage was proper. From the $240,000 maximum limit available (six vehicles X $40,000), the panel subtracted $74,033.39 in previously paid workers’ compensation benefits. It concluded, therefore, that the plaintiff was due the sum of $165,966.61.

The defendant filed an application in Superior Court seeking to set aside the arbitration award in its entirety pursuant to General Statutes § 52-418. The plaintiff filed a separate application seeking to correct only that portion of the decision that reduced the award by the amount of the previously paid workers’ compensation benefits. The trial court, Meadow, J., confirmed the award in its entirety and rendered judgment denying both applications. The defendant appealed and the plaintiff cross appealed to the Appellate Court. We thereafter transferred both matters to ourselves pursuant to Practice Book § 4023.

On appeal, the defendant claims that the trial court erred in concluding: (1) the plaintiff was a “named insured” under the policy; and (2) “stacking” was permitted in the context of fleet automobile liability policies. In view of our conclusion that the trial court erred by allowing the “stacking” of the fleet automobile uninsured motorist coverage, we need not address the first issue raised.

In Cohn v. Aetna Ins. Co., 213 Conn. 525, 569 A.2d 541 (1990), we examined the applicability of “stacking” principles in the context of fleet insurance contracts. We defined such a contract as “any insurance policy designated as a ‘fleet’ or ‘garage’ policy, or any insurance policy covering a number of vehicles owned by a business, a governmental entity, or an institution.” (Emphasis added.) Id., 530. We concluded that “[t]he notion of ‘stacking’ as an objectively reasonable expectation of the parties [did] not . . . extend to fleet insurance contracts.” Id. The reason was that it was simply not credible that “a company or an employee of a company having a fleet of . . . vehicles would reasonably expect the coverage on [any one vehicle] at the time of the collision with an uninsured [or underinsured] motorist to be [a multiple of the total number of vehicles in the fleet] . . . .” Linderer v. Royal Globe Ins. Co., 597 S.W.2d 656, 661 (Mo. App. 1980).

In the present case, the town of Woodbridge held a fleet policy insuring thirty-one vehicles. Each vehicle had uninsured motorist coverage with stated limits of $40,000. If “stacking” were permitted, $40,000 times thirty-one vehicles would produce $1,240,000 of uninsured motor vehicle coverage available for each vehicle. Followed to its logical conclusion, this would mean that the town of Woodbridge had purchased a total of $38,440,000 worth of uninsured motorist coverage for a premium of $137. “ ‘ “Clearly such an expectation would not have been a reasonable one under the terms of the commercial fleet policy here in question.” ’ Ohio Casualty Ins. Co. v. Stanfield, 581 S.W.2d 555, 559 (Ky. 1979), quoting Lambert v. Liberty Mutual Ins. Co., 331 So. 2d 260, 265 (Ala. 1976) . . . .” Cohn v. Aetna Ins. Co., supra, 531. Even the present parties, in their unexplained stipulation limiting “stacking” principles to the six vehicles assigned to the Woodbridge police department, seemed to have sensed that the proposition is simply unsupportable when applied to large numbers of vehicles.

In his cross appeal, the plaintiff claims that the trial court erred in allowing the defendant a credit for workers’ compensation benefits already paid to him in determining the amounts due under the uninsured motorist coverage. The plaintiff concedes, as he must, that the uninsured motorists endorsement to the policy here in issue contained a specific provision reducing any amounts payable under the uninsured motorists endorsement by any sums paid under the workers’ compensation laws. Further, § 38-175a-6 (d) of the Regulations of Connecticut State Agencies specifically authorizes uninsured motorist benefits to be reduced by the amount of such payments.

The plaintiff argues, however, that: (1) his damages are for pain, suffering, disability, and loss of earning capacity, none of which are recoverable under the workers’ compensation laws, and therefore, his damages have not been paid and thus, no reduction in uninsured motorist coverage is required under § 38-175a-6 (d); and (2) General Statutes § 38-175c, the statute requiring uninsured motorist coverage, provides a minimum limit of $20,000 for such coverage, a base amount, the plaintiff contends, which cannot be further eroded by the setoffs contained in § 38-175a-6 (d). To the extent that such setoffs exist, the plaintiff claims that the commissioner was without authority to adopt such a regulation, which is contrary to the minimum coverage required by § 38-175c. We do not agree.

We see nothing in the language of regulation § 38-175a-6 (d) that quantifies the kinds of damages that must be paid before a valid reduction in uninsured motorist benefits may occur by reason of any payments made pursuant to the workers’ compensation law. If damages are paid pursuant to the workers’ compensation law, the uninsured motorist coverage may be reduced accordingly. General Statutes § 38-175c contains no mandate that uninsured motorist coverage benefits may not be reduced.

As we have earlier observed, “[t]he plain words of the statute . . . [§ 38-175c] simply require that each policy provide a minimum level of uninsured motorist coverage ‘for the protection of persons insured thereunder.’ The statute does not require that uninsured motorist coverage be made available when the insured has been otherwise protected ... or when the uninsured motorist has other resources available to protect the insured. Nor does the statute provide that the uninsured motorist coverage shall stand as an independent source of recovery for the insured, or that the coverage limits shall not be reduced under appropriate circumstances. The statute merely requires that a certain minimum level of protection be provided for those insured under automobile liability insurance policies; the insurance commissioner has been left with the task of defining those terms and conditions which will suffice to satisfy the requirement of ‘protection.’ ” (Emphasis added.) Roy v. Centennial Ins. Co., 171 Conn. 463, 472-73, 370 A.2d 1011 (1976).

“Section 38-175c does not specifically prohibit the adoption of a regulation permitting the reduction of uninsured motorist coverage, whereas § 38-175a explicitly authorizes the commission to adopt regulations relating ‘to the insuring agreements, exclusions, conditions and other terms applicable to . . . uninsured motorists coverages.’ In the construction of statutes, great deference is to be accorded to the construction given the statute by the agency charged with its enforcement.” Id., 473. We are also mindful of the proposition that the legislature is presumed to be aware of the judicial construction placed upon its enactments; Nationwide Ins. Co. v. Gode, 187 Conn. 386, 395 n.7, 446 A.2d 1059 (1982); and despite our earlier observations concerning the purport of these statutes, we find no amendments that would support a contrary construction.

“The automobile liability insurance business is one which is extensively regulated; Simonette v. Great American Ins. Co., 165 Conn. 466, 473, 338 A.2d 453 [1973]; and judicial revision of the terms upon which such policies are issued may produce extensive repercussions throughout the insurance industry of the state. In view of the very broad grant of regulatory authority to the insurance commissioner, we are not persuaded that the commissioner was without authority to adopt regulation § 38-175a-6 (d).” Roy v. Centennial Ins. Co., supra.

There is error on the appeal and the matter is remanded to the trial court with direction to vacate the judgment and to modify the arbitration award to reflect underinsured motorist coverage in the amount of $40,000; there is no error on the cross appeal.

In this opinion the other justices concurred.

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

       The uninsured motorists insurance endorsement provides under “E. OUR LIMIT OF LIABILITY” that “[a]ny amount payable under this insurance shall be reduced by . . . All sums paid or payable under any workers’ compensation . . . law . . . .”

       Section 38-175a-6 of the Regulations of Connecticut State Agencies provides in relevant part: “minimum provision for protection against uninsured motorists .... (d) limits of liability. The limit of the insurer’s liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of § 14-112 of the general statutes, except that the policy may provide for the reduction of limits to the extent that damages have been (1) paid by or on behalf of any person responsible for the injury, (2) paid or are payable under any workers’ compensation or disability benefits law, or (3) paid under the policy in settlement of a liability claim. The policy may also provide that any direct indemnity for medical expense paid or payable under the policy or any amount of any basic reparations benefits paid or payable under the policy will reduce the damages which the insured may recover under this coverage and any payment under these coverages shall reduce the company’s obligation under the bodily injury liability coverage to the extent of the payment.” (Emphasis added.)


source: Caselaw Access Project

author: Covello, J.

license: Public Domain

text:
    Stuart Cohn, Conservator (Estate of Jill Cohn) v. Pacific Employers Insurance Company
    (13764)
    Peters, C. J., Healey, Callahan, Glass and Covello, Js.
    Argued November 1, 1989
    decision released January 30, 1990

      IraB. Grudberg, with whom was Alice S. Miskimin, for the appellant (plaintiff).

      Jesse M. Frankl, with whom was Jean Molloy, for the appellee (defendant).
   Covello, J.

This is an appeal from a judgment following a ruling of the trial court, Corradino, J., that concluded that the defendant’s insurance contract was inapplicable to the plaintiffs claim. The principal issue is whether an “excess” or “umbrella” insurance policy provides coverage to third party claimants injured through the acts of uninsured or underinsured motorists. We conclude that neither the language of this policy nor the provisions of General Statutes § 38-175C require such a result, and therefore, find no error.

The relevant facts are undisputed. On August 11, 1983, the defendant, Pacific Employers Insurance Company (PEIC), had in force an “Excess Blanket Catastrophe Liability Policy,” (umbrella policy) insuring Joseph Cohn & Son, Inc. (insured), a New Haven commercial painting contractor. The PEIC umbrella policy provided blanket coverage of $5,000,000, this sum to be available, however, only in the event of the exhaustion of the coverage provided by three other specifically identified policies. One of these underlying policies was the insured’s automobile liability policy that provided coverage for each of twenty-two vehicles.* The insuring agreement stated that “PEIC will indemnify the Insured for ultimate net loss in excess of the retained limit hereinafter stated which the Insured shall become legally obligated to pay as damages because of A. personal injury or B. property damage or C. advertising injury . . . . ” (Emphasis added.)

On August 11, 1983, the plaintiffs wife, Jill Cohn, while operating one of the insured automobiles, was severely injured in a collision at the intersection of Temple and Grove Streets in New Haven. Transamerica Insurance Company, insurer of the other vehicle involved in the collision, paid the plaintiff $25,000 which was the full amount of its liability policy. Despite the exhaustion of the limits of two other policies available to Jill Cohn that were primary to the PEIC umbrella policy and that provided underinsured motorist coverage, the total sums paid were insufficient to compensate Jill Cohn’s estate for her injuries and losses.

The plaintiff, the conservator of his wife’s estate, made a timely demand for payment under the PEIC umbrella policy, claiming that the policy provisions were applicable to a situation where the responsible tortfeasor was an underinsured motorist. PEIC denied the claim. On April 30,1986, the plaintiff brought suit, alleging a breach of the insurance contract. PEIC filed a motion to strike the complaint as revised in its entirety, on the ground that the insurance contract did not provide coverage under the circumstances described in the complaint.

The trial court, Corradino, J., granted the motion to strike, concluding that: (1) the umbrella policy’s language was unambiguous; (2) the umbrella policy did not provide underinsured motorist protection; and (3) the umbrella policy was not an “automobile liability policy” within the meaning of General Statutes § 38-175c and therefore, as a matter of. law, the policy was not required to provide uninsured motorist coverage. The plaintiff declined to plead over, and on May 15, 1989, the trial court, Quinn, J., rendered judgment for the defendant. The plaintiff appealed to the Appellate Court. We thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

On appeal, the plaintiff first argues that the trial court erred in concluding that the language of PEIC’s umbrella policy was not ambiguous. Specifically, he contends that paragraph 3 (e) of the “Conditions” section of the umbrella policy renders the policy ambiguous as to its nature and the scope of its coverage. Therefore, the plaintiff argues, according to well established principles of insurance contract construction, the policy must be interpreted in the light most favorable to the plaintiff; i.e., so as to provide underinsured motorist coverage to Jill Cohn. See, e.g., Cody v. Remington Electric Shavers, 179 Conn. 494, 497, 427 A.2d 810 (1980); Dickinson v. Maryland Casualty Co., 101 Conn. 369, 378-79, 125 A. 866 (1924). We do not agree.

Paragraph 3 (e) of the policy states, “[a]s this policy is excess insurance, the insured warrants that coverage under the uninsured motorist laws will be maintained during the policy period. It is agreed that the Named Insured shall promptly reimburse PEIC for any amount of ultimate net loss paid on behalf of any Insured as respects any payment made under an uninsured motorist law, or any similar law.”

This language is neither ambiguous nor does it broaden the scope of the policy’s coverage. Rather, it describes as a condition to the policy’s issuance, the circumstances under which the insured would be liable to the carrier. First, it contains the insured’s representation that uninsured motorist coverage would be maintained during the policy period. Clearly, if paragraph 3 (e) was providing uninsured motorist coverage, as the plaintiff contends, it would not be necessary to include a representation that uninsured motorist coverage would be maintained during the policy period as such coverage would already exist within the four comers of the very same policy. Second, paragraph 3 (e) mandates that the insured must promptly reimburse PEIC for any loss that PEIC may have to pay by reason of any uninsured/underinsured motorist law. In other words, it is the insured who is agreeing to pay PEIC for any uninsured/underinsured motorist claims, and not vice versa, as the plaintiff contends. Nowhere does PEIC agree to provide uninsured or underinsured coverage. Where the terms of a policy are clear and unambiguous, they will be given their plain and ordinary meaning. Aschenbrenner v. United States Fidelity & Guaranty Co., 292 U.S. 80, 85, 54 S. Ct. 590, 78 L. Ed. 1137 (1934); Beach v. Middlesex Mutual Assurance Co., 205 Conn. 246, 249, 532 A.2d 1297 (1987); Horak v. Middlesex Mutual Assurance Co., 181 Conn. 614, 616, 436 A.2d 783 (1980); Weingarten v. Allstate Ins. Co., 169 Conn. 502, 509-10, 363 A.2d 1055 (1975).

The plaintiff next argues that the umbrella policy, in describing those insured, refers to “any person while using, with the permission of the Named Insured, any automobile . . . . ” Since the policy contains a reference to an automobile and provides coverage for personal injuries and property damage that could conceivably flow from an automobile accident, the plaintiff contends that the umbrella policy must also be an automobile liability policy. Since it is an automobile liability policy, the plaintiff argues that the policy must provide uninsured motorist coverage as required by General Statutes § 38-175c. While we agree that § 38-175c requires that there be uninsured motorist' coverage in automobile liability policies; see footnote 1, supra; we disagree that this is an automobile liability policy within the meaning of § 38-175c.

“Whether an insurance contract is a liability policy or an indemnity policy depends upon the intention of the parties, as evidenced by the phraseology of their agreement .... The chief difference between a liability policy and an indemnity policy is that under the former a cause of action accrues when the liability attaches, while under the latter there is no cause of action until the liability has been discharged, as by payment of the judgment by the insured.” 6A J. Apple-man, Insurance § 4261, and see the cases cited therein. Page one of the policy contains the “Insuring Agreement.” It establishes the obligations as between the parties to the insurance contract. The first paragraph states the “PEIC will indemnify the Insured for ultimate net loss in excess of the retained limit . . . which the Insured shall become legally obligated to pay as damages because of . . . personal injury or . . . property damage or . . . advertising injury . . . .” (Emphasis added.) In its simplest terms, the insuring agreement provides that the parties have entered into an indemnification contract intended to reimburse the named insured should it become liable to third parties for a loss that was greater than the coverage limits of the underlying policies. Liability beyond these terms will not be extended by implication. Miller Bros. Construction Co. v. Maryland Casualty Co., 113 Conn. 504, 513, 155 A. 709 (1931); Ryiz v. Federal Ins. Co., 5 Conn. App. 179, 182-83, 497 A.2d 1001 (1985); see also Plainville v. Travelers Indemnity Co., 178 Conn. 664, 674, 425 A.2d 131 (1979).

The entire orientation of this contract, as evidenced by its unequivocal language, is to indemnify the insured rather than to assume direct liability to injured third parties. To the extent that there may be similarities in the environment of underlying automobile policies vis a vis excess blanket catastrophe liability policies, we conclude that the term automobile liability policy as referred to in § 38-175c includes only those policies that extend underlying coverage before the operation of any indemnity policy that might otherwise exist.

Other jurisdictions that have dealt with the issue of whether umbrella policies must provide uninsured or underinsured motorist coverage have held that statutory enactments similar to § 38-175c do not apply to umbrella policies. See, e.g., Trinity Universal Ins. Co. v. Metzger, 360 So. 2d 960, 962 (Ala. 1978); see also O’Hanlon v. Hartford Accident & Idemnity Co., 639 F.2d 1019 (3d Cir. 1981); Hartharger v. Country Mutual Ins. Co., 107 Ill. App. 3d 391, 396, 437 N.E.2d 691 (1982); Matarasso v. Continental Casualty Co., 82 App. Div. 2d 861, 862, 440 N.Y.S.2d 40 (1981); Moser v. Liberty Mutual Ins. Co., 731 P.2d 406, 410 n.16 (Okla. 1987); Thompson v. Grange Ins. Assn., 34 Wash. App. 151, 156-57, 660 P.2d 307 (1983); see generally 8A J. Appleman, Insurance § 4909.85.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 38-175c. uninsured motorist coverage. (a) (1) Every such policy shall provide insurance, herein called uninsured motorist coverage, in accordance with such regulations, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom, provided each insurer licensed to write automobile liability insurance in this state shall provide such uninsured motorists coverage with limits requested by the named insured upon payment of the appropriate premium, but such insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily injury coverage of such policy issued to such named insured. No insurer shall be required to provide uninsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured, or (B) to any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured. Every such policy issued on or after October 1, 1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. With respect to any claim submitted to arbitration on or after October 1, 1983, the arbitration proceeding shall be conducted by a single arbitrator if the amount in demand is forty thousand dollars or less or by a panel of three arbitrators if the amount in demand is more than forty thousand dollars.
      “(2) Notwithstanding any provision of this section to the contrary, every such policy issued or renewed on and after July 1,1984, shall provide uninsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless the insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by the insured.
      “(b) (1) An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage, exceed the limits of the insured’s uninsured motorist coverage.
      “(2) For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subdivision (1) of this subsection.”

       The underlying automobile liability policy, No. BAP 416082, was issued by the Insurance Company of North America/Aetna (INA/Aetna) and provided bodily injury coverage in the amount of $150,000 per person with an aggregate coverage of $500,000 per occurrence, plus $100,000 property damage coverage. The umbrella policy also was in excess of an INA/Aetna general liability policy, No. CPP465373, which provided $500,000/500,000 bodily injury coverage and $100,000 property damage coverage, and an INA/Aetna employer’s liability policy, No. AWSC 19767401, which provided $100,000 coverage.

       “A Stock Insurance Company, herein called PEIC
      In consideration of the premium to be paid, in reliance upon the statements in the declarations made a part hereof and subject to all of the terms of this policy, agrees with the Named Insured as follows:
      INSURING AGREEMENT
      Coverage A — Personal Injury Liability
      Coverage B — Property Damage Liability
      Coverage C — Advertising Liability
      PEIC will indemnify the Insured for ultimate net loss in excess of the retained limit hereinafter stated which the Insured shall become legally obligated to pay as damages because of
      A. personal injury or
      B. property damage or
      C. advertising injury
      to which this insurance applies, caused by an occurrence, and
      (1) With respect to any personal injury, property damage or advertising injury not within the terms of the coverage of underlying insurance but within the terms of coverage of this insurance; or
      (2) If limits of liability of the underlying insurance are exhausted because of personal injury, property damage or advertising injury during the period of this policy
      PEIC will
      (a) have the right and duty to defend any suit against the Insured seeking damages on account of such personal injury, property damage or advertising injury, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient; but PEIC shall not be obligated to pay any claim or judgment or to defend any suit after PEIC’s limit of liability has been exhausted by payment of judgments or settlements;
      (b) in addition to the amount of ultimate net loss payable:
      (i) pay all expenses incurred by PEIC, all costs taxed against the Insured in any suit defended by PEIC and all interest on the entire amount of any judgment therein which accrues after entry of the judgment and before PEIC has paid or tendered or deposited in court that part of the judgment which does not exceed the limit of PEIC’s liability thereon;
      (ii) pay premiums on appeal bonds required in any suit, premium on bonds to release attachments in any such suit for an amount not in excess of the applicable limit of liability of this policy, and the cost of bail bonds required of the Insured because of accident or traffic law violation arising out of the use of any vehicle to which this policy applies but PEIC shall have no obligation to apply for or furnish any such bonds;
      (iii) pay reasonable expenses incurred by the Insured at PEIC’s request in assisting PEIC in the investigation or defense of any claim or suit, including actual loss of earnings not to exceed $50 per day.
      In jurisdictions where PEIC may be prevented by law or otherwise from carrying out this agreement, PEIC will indemnify the Insured for such expense incurred with its written consent in accordance with this provision.”

       The other insurance policies available to Jill Cohn were a household policy, issued by Hartford Accident, which provided $300,000 coverage, and a CIGNA policy issued to Joseph Cohn & Son, Inc., which provided $40,000 coverage.

       See footnote 3, supra.


author: Peters, C. J.

text:
    Richard E. Mahoney, Sr., Administrator (Estate of Richard E. Mahoney, Jr.), et al. v. Brian Lensink, Commissioner of Mental Retardation, et al.
    (13605)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.

      Argued October 31, 1989
    decision released January 30, 1990

      PaulJ. Lahey, assistant attorney general, with whom were Richard J. Lynch, assistant attorney general, and, on the brief, Clarine Nardi Riddle, attorney general, Carl J. Schuman, former assistant attorney general, and Andrea Gaines, assistant attorney general, for the appellants-appellees (defendants).

      William B. Wynne, for the appellees-appellants (plaintiffs).

      Lawrence W. Berliner filed a brief for the Office of Protection and Advocacy for Handicapped and Developmentally Disabled Persons as amicus curiae.
   Peters, C. J.

This appeal concerns the availability and the scope of the remedy afforded by General Statutes § 17-206k to a voluntary patient in a state mental hospital who claims a deprivation of personal, property and civil rights under General Statutes § 17-206b and a violation of his right to humane and dignified treatment under General Statutes § 17-206C. The plaintiffs, Richard E. Mahoney, individually'and in his capacity as administrator of his son’s estate, and Barbara Mahoney, individually, brought an action against the commissioners of mental health, state police and mental retardation* * upon the death of their son while a patient at Norwich Hospital. The trial court dismissed this action for lack of subject matter jurisdiction. On appeal, the Appellate Court set aside the judgment of dismissal insofar as the plaintiffs had alleged a violation of § 17-206c but upheld the dismissal with respect to the alleged violation of § 17-206b and remanded the case for further proceedings. Mahoney v. Lensink, 17 Conn. App. 130, 550 A.2d 1088 (1988). We granted both the defendants’ petition for certification; Mahoney v. Lensink, 210 Conn. 806, 554 A.2d 742 (1989); and the plaintiffs’ cross petition for certification. Mahoney v. Lensink, 210 Conn. 806, 554 A.2d 743 (1989). We affirm the Appellate Court’s construction of § 17-206k as a waiver of the state’s sovereign immunity, but conclude that the administrative and public history of the patients’ bill of rights; General Statutes §§ 17-206a through 17-206k; compels a broader construction of the statutory causes of action thereby created. Accordingly, we now reverse in part.

The Appellate Court’s opinion reveals the following factual and procedural history derived from the allegations in the plaintiffs’ complaint. The plaintiffs’ son, Richard Mahoney, Jr., “was killed when he jumped from an oil tank reserve located on the grounds of [Norwich] hospital.” Mahoney v. Lensink, supra, 17 Conn. App. 132. The decedent was a “voluntary admission patient” at Norwich Hospital; id.; alleged to be suffering “from a mental illness that included suicidal tendencies.” Id., 138. The plaintiffs alleged that the defendants’ failure “to provide proper counseling, medication, supervision or suicide precautions, so as to prevent the decedent from acting on his suicidal tendencies”; id., 138-39; amounted to “negligent, wanton, and willful misconduct” which caused the death of their son. Id., 132. Count ten of the amended complaint, to which this appeal is limited, claims that this alleged misconduct violated both §§ 17-206b and 17-206c, but it fails to specify what factual allegations are applicable to either statute. Id., 137-38.

Asserting that the doctrine of sovereign-immunity barred the plaintiffs from bringing this action against the state or its commissioners, the defendants moved to dismiss the complaint in its entirety on the ground that the trial court lacked subject matter jurisdiction. Id., 132. Because any statutory waiver of sovereign immunity must be narrowly construed, the defendants argued that § 17-206k’s provision for “[a]ny person aggrieved” to “bring a civil action for damages” does not constitute the type of express authorization that signals legislative abrogation of sovereign immunity. Persuaded by this argument, the trial court concluded that “§ 1.7-206k does not constitute legislative consent to a suit for damages against the state or its commissioners,” and granted the motion to dismiss. Id., 133.

In the plaintiffs’ appeal to the Appellate Court, the defendants did not contest the proposition that patients in state mental health facilities are entitled to the substantive rights afforded by §§ 17-206b and 17-206c. The defendants argued, however, that whatever remedial rights might be afforded to patients in private mental hospitals, patients in state hospitals could pursue their statutory remedies only through recourse to the claims commissioner. Id., 135. The Appellate Court rejected this distinction. Having determined that patients in state mental health facilities are included among the class of individuals potentially aggrieved by violations of §§ 17-206b and 17-206c, the Appellate Court construed § 17-206k in light of the rights for which it provides remedies. Id., 135-36. Because § 17-206k does not distinguish between remedies available to state facility patients and private facility patients, the Appellate Court concluded that the legislature intended § 17-206k to authorize direct civil actions against the state or its commissioners by patients of state mental health facilities aggrieved by violations of §§ 17-206b and 17-206c. Id., 136.

The Appellate Court went on to hold, however, that the plaintiffs’ complaint failed to allege a cause of action under § 17-206b. Id., 138. The Appellate Court opined that § 17-206b guarantees only that hospitalization or treatment in a mental health facility cannot be used as justification for depriving a patient of a right that a patient otherwise enjoys. Id., 137-38. Because the claimed rights to proper counseling, medication, and suicide precautions are not rights held absent hospitalization, but instead arise, if at all,, as a result of hospitalization, the Appellate Court found no error in the judgment of dismissal with respect to the alleged violations of § 17-206b. Id., 138.

The Appellate Court came to a different conclusion with respect to the plaintiffs’ allegations pursuant to § 17-206c. Id., 140-41. Unpersuaded by the defendants’ assertion that the guarantee of humane and dignified treatment contemplates only the protection of personal dignity and privacy, such as the right to refuse medication; id., 138; the Appellate Court held that § 17-206c accords a patient a positive right to treatment. Id. The Appellate Court also rejected the defendants’ contention that, because a merely negligent failure to afford proper treatment does not constitute a cause of action under 42 U.S.C. § 1983, § 17-206c similarly requires allegations rising above negligence. Id., 139-40. Noting that the federal due process clause is the source for the right to treatment recognized by the federal courts; id.; the Appellate Court reasoned that a right to humane and dignified treatment conferred by statute; General Statutes § 17-206c; does not necessarily embody federal constraints on an actionable right to treatment. Id., 140. The Appellate Court thus concluded that “[sjection 17-206c creates a new tort liability based upon a specified course of conduct that is not dependent upon common law negligence.” Id.

The present appeal requires us to resolve three issues. On the defendants’ appeal, we must decide whether the Appellate Court erred in construing § 17-206k as an abrogation of the state’s sovereign immunity, and in construing § 17-206c to encompass the allegations in the plaintiffs’ complaint. On the plaintiffs’ cross appeal, we must determine whether their complaint properly invokes the rights conferred upon the decedent by § 17-206b. We affirm the Appellate Court’s ruling on the appeal, and reverse its ruling on the cross appeal.

I

We turn first to the jurisdictional issue, whether § 17-206k, in providing a statutory remedy for those persons aggrieved by violations of any specific provisions of the patients’ bill of rights, §§ 17-206a through 17-206k, constitutes an abrogation of sovereign immunity so as to authorize a voluntary patient in a state mental facility to sue the state or its commissioners. “It is settled law in Connecticut that the state is immune from suit unless, by appropriate legislation, it authorizes or consents to suit.” Owner-Operators Independent Drivers Assn. of America v. State, 209 Conn. 679, 684, 553 A.2d 1104 (1989). A legislative decision to waive sovereign immunity must be manifested either “ ‘ “by the use of express terms or by force of a necessary implication.” ’ ” Struckman v. Burns, 205 Conn. 542, 558, 534 A.2d 888 (1987), quoting Murphy v. Ives, 151 Conn. 259, 262-63, 196 A.2d 596 (1963). Moreover, because such statutes are in derogation of the common law, “ ‘[a]ny statutory waiver of immunity must be narrowly construed’; Struckman v. Burns, supra; and its scope must be confined strictly to the extent the statute provides. Berger, Lehman Associates, Inc. v. State, 178 Conn. 352, 356, 422 A.2d 268 (1979). . . Owner-Operators Independent Drivers Assn. of America v. State, supra, 685.

In reliance on these accepted principles, the defendants assert that the Appellate Court erred in construing § 17-206k to abrogate the state’s sovereign immunity. The defendants maintain that the use of such generalized language as “any person aggrieved” in § 17-206k evinces neither an express intention nor the force of implication necessary to constitute a statutory waiver of sovereign immunity. The defendants further argue that the absence of any meaningful legislative history bolsters their claim that this generalized statute does not abrogate the state’s sovereign immunity. We disagree.

On its face, the provision in § 17-206k that “[a]ny person aggrieved . . . may bring a civil action for damages” (emphasis added) does not expressly waive sovereign immunity. A statute must be considered, however, as a whole, with a view toward reconciling its separate parts in order to render an overall reasonable interpretation. Shortt v. New Milford Police Department, 212 Conn. 294, 305, 562 A.2d 7 (1989); American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987). The determinative question, therefore, is whether a contrary implication necessarily flows from the juxtaposition of this section with the remaining provisions of the patients’ bill of rights.

Several provisions of the patients’ bill of rights illuminate the breadth of the legislative concern for the fair treatment of mental patients. Because the patients’ bill of rights is remedial in nature, its provisions should be liberally construed in favor of the class sought to be benefited. See Muha v. United Oil Co., 180 Conn. 720, 728, 433 A.2d 1009 (1980). Notably, § 17-206b mandates that “[n]o patient . . . treated in any public or private facility for the treatment of the mentally disordered shall* be deprived of any personal, property or civil rights . . . .” (Emphasis added.) Similarly, § 17-206c entitles “[e]very patient treated in any facility [to] receive humane and dignified treatment . . . .” (Emphasis added.) As the Appellate Court properly noted and the defendants concede, patients in state mental health facilities are clearly included among the class of individuals potentially aggrieved by violations of §§ 17-206b and 17-206c. Mahoney v. Lensink, supra, 136.

Having established that the substantive provisions of the patients’ bill of rights encompass state mental health facilities as well as private institutions, we must determine what implications necessarily follow for the remedial scope of § 17-206k. Like the Appellate Court, we view statutory rights that encompass “any public . . . facility” to provide a remedy against the state, wherever and whenever the state or a municipality operates treatment facilities for the mentally disordered. Despite the defendants’ contentions to the contrary, we conclude that it is a necessary implication of the purposes sought to be served by the enactment of the patients’ bill of rights that the legislature intended to provide a direct cause of action against the state and thus to waive its sovereign immunity. State v. Magnano, 204 Conn. 259, 274 n.8, 528 A.2d 760 (1987); Verrastro v. Sivertsen, 188 Conn. 213, 221, 448 A.2d 1344 (1982). Other state courts have similarly construed analogous statutes to permit an action for damages against the state for mistreatment of a patient within a state mental health facility. State v. Brosseau, 124 N.H. 184, 191, 470 A.2d 869 (1983); Chasse v. Banas, 119 N.H. 93, 97, 399 A.2d 608 (1979); see Scott v. Plante, 691 F.2d 634, 638 (3d Cir. 1982); State v. Carter, 64 N. J. 382, 391-92, 316 A.2d 449 (1974); E. H. v. Matin, 284 S.E.2d 232, 237 (W. Ya. 1981); but see Woodbridge v. Worcester State Hospital, 384 Mass. 38, 43, 423 N.E.2d 782 (1981); Caronia v. Greenfeder, 30 Pa. Commw. 337, 374 A.2d 741, 742-43 (1977).

Our conclusion finds support, furthermore, in the history attending the enactment of the patients’ bill of rights. Examination of the committee hearings on the senate bill that was eventually codified as § 17-206a et seq. reveals that the act was intended to remedy the then prevailing conditions at state mental health facilities. The principal testimony was that of Walter Yoight, who had been employed for four and one-half years at two of the state’s mental health hospitals. First observing that “my employment experience in Connecticut’s Mental Hospitals consistently lend[s] credence to the notions that mental hospital patients are regularly exposed to various institutional policies and practices which deprive them of their basic human rights and which have a demoralizing and dehumanizing effect on the individual,” Voight then articulated the nexus between “these [the state’s] practices and procedures . . . [and] those which [Senate Bill No.] 592 seeks to modify and control.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2,1971 Sess., p. 673. The most interesting revelation in Voight’s testimony, however, is his reference to a report concerning an investigation at Fairfield Hills Hospital, a state mental health facility. General Statutes § 17-207b (b).

In 1969, in response to numerous letters from patients in state mental hospitals, and families, Governor John N. Dempsey had ordered an investigation of Fairfield Hills Hospital. Thereafter, the state board of mental health appointed a task force to review the administrative and professional programs of Fairfield Hills Hospital. The report of the Task Force Study of Fairfield Hills Hospital was issued on May 15,1970. It documented, in detail, the extent to which then prevailing practices at Fairfield Hills Hospital departed from the standards set by the American Psychiatric Association, and described the factors that it found to have contributed to “the development and maintenance of a system which inherently must result in violations and limitations of both human and civil rights,” (Emphasis added.) Id., p. 4. Having noted that “[t]he listed complaints have by now become classic legal problems in mental hospitals in many states, [that have been successfully resolved] by enactment of new legislation in New York and California”; id.; the task force report recommended that the legislature enact a patient’s bill of rights to resolve problems that “may be generic to all the State hospitals in Connecticut.” Id., p. 22; see generally comment, “The Mentally 111 in Connecticut— A Survey,” 6 Conn. L. Rev. 303, 340-48 (1973-74). The close temporal relationship between the release of the Task Force Study of Fairfield Hills Hospital and the adoption of the substantive provisions of the patients’ bill of rights necessarily leads us to conclude that the legislature intended in enacting § 17-206k to abrogate the state’s sovereign immunity. The Appellate Court was correct in holding that the trial court had jurisdiction to hear this case.

II

The defendants’ second claim of error challenges the Appellate Court’s conclusion that the plaintiffs’ complaint sufficiently states a cause of action for deprivation of the right to “humane and dignified treatment” that § 17-206c guarantees to “every patient” in state mental hospitals. The defendants do not challenge the Appellate Court’s determination that § 17-206c creates a new statutory tort action. Mahoney v. Lensink, supra, 17 Conn. App. 140. They maintain, however, that, in the absence of relevant legislative history, the legislature must be presumed to have intended only a narrowly circumscribed guarantee of compassionate care. We are unpersuaded.

In enacting § 17-206c, the legislature created a statutory cause of action that established a new tort liability, unknown to the common law, and therefore independent of common law negligence. See Sanders v. Officers Club of Connecticut, Inc., 196 Conn 341, 348-49, 493 A.2d 184 (1985); Pierce v. Albanese, 144 Conn. 241, 249, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S. Ct. 36, 2 L. Ed. 2d 21 (1957). We must determine whether the plaintiffs’ complaint falls within the conduct that the statute makes actionable.

Section 17-206c provides in pertinent part that “fejvery patient treated in any facility for the treatment of the mentally disordered shall receive humane and dignified treatment at all times, with full respect for his personal dignity and right to privacy.” The statute also provides that “[ejach patient shall be treated in accordance with a specialized treatment plan suited to his disorder.” Since the legislature chose not to attach a statutory definition to the phrase “humane and dignified treatment,” we must interpret this language in light of the established canons of statutory construction. Our objective is to construe § 17-206c so as to “ ‘ “ ‘ascertain and give effect to the apparent intent of the legislature.’ ” ’ Capalbo v. Planning & Zoning Board of Appeals, 208 Conn. 480, 486, 547 A.2d 528 (1988) . . . .” Shortt v. New Milford Police Department, supra, 300-301. Because of the inherent ambiguity in the text of § 17-206c, we look to the purpose the statute is to serve as revealed by its legislative history and the circumstances surrounding its enactment. Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 54-55, 523 A.2d 477 (1987).

The Appellate Court concluded that the language of § 17-206c indicates generally that “a patient has a positive right to treatment, rather than simply a negative right to refuse it”; Mahoney v. Lensink, supra, 17 Conn. App. 138; and specifically that “a patient is entitled to a specialized treatment plan tailored to his particular disorder.” Id. The defendants take issue with this construction as too expansive. Contending that there is no relevant legislative history, the defendants maintain that the scope of this new statutory cause of action should be limited to “abstinence from procedures — such as strip searches, beatings, or deprivation of food— that would obviously fall short of the ideal.” In support of this narrow construction, they remind us that the legislature would have recognized the difficulties that necessarily inhere in the decisions made by mental health professionals and would not have intended to subject such judgments to extensive oversight by lay judges and juries. Youngberg v. Romeo, 457 U.S. 307, 323, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982). Accordingly, the defendants urge us to confine the statutory guarantee of “humane and dignified treatment” to deprivations that arise out of procedures that implicate sentient needs and feelings alone. Our analysis of the circumstances leading to the enactment of § 17-206c persuades us, however, that the Appellate Court’s construction was correct.

The findings and recommendations of the Task Force Study of Fairfield Hills Hospital contain a cogent frame of reference for the construction of § 17-206c. In the section entitled “Treatment and Patient Care,” the task force report reveals the antitherapeutic nature of the clinical environment prevalent at state mental health facilities: “The impression is one of a treatment atmosphere too rigid, and impoverished by restrictions placed on those who could provide vitality. Again the picture emerges of control from the top of sufficient degree as to influence the staff to behave in a fashion fostering administrative practices which create a life within the institution strikingly similar to that which may contribute to the origin of the patients’ illnesses: A climate characterized by authoritarianism, loneliness, alienation and depersonalization. Such goals as cleanliness seem often to have higher priority than involvement with patients in active interpersonal therapeutic relationships.” Id., pp. 18-19. The thrust of these findings is that "the primary function of any psychiatric facility is to diagnose, treat and to restore mentally disturbed persons to an optimal level of functioning . . . . ” Id., p. 18. The task force expressly, and the legislature by necessary implication, eschewed the custodial orientation implicit in the defendants’ contention that the statutory guidelines should be limited to providing sentient care. In its adoption of a statutory right to humane and dignified treatment, the legislature intended to afford patients a meaningful right to treatment, consistent with the requirements of good medical practice.

In searching for the tenets of good medical practice, we can turn to the American Psychiatric Association’s definition of the right to treatment as a comprehensive approach including “ ‘active intervention of a psychological, biological, physical, chemical, educational or social nature where application of the individualized treatment plan is felt to have a reasonable expectation of improving the patient’s condition.” R. Sadoff, Legal Issues in the Care of Psychiatric Patients: A Guide for the Mental Health Professional (1982) p. 32. Meaningful treatment thus requires not only basic custodial care but also an individualized effort to help each patient by formulating, administering and monitoring a "specialized treatment plan” as expressly mandated by § 17-206c. See generally Rouse v. Cameron, 373 F.2d 451 (D.C. Cir. 1966); T. Gutheil & P. Appelbaum, Psychiatry and the Law (1982) p. 108; D. Bazelon, Introduction, The Right To Treatment (D. Burris ed. 1969) p. 3.

The statutory responsibility for the formulation and subsequent monitoring of an appropriate treatment plan for each patient does not, however, encompass a guarantee that the treatment plan will invariably produce the desired results. A poor outcome may occur despite the best possible medical practice. See generally S. Halleck, Law in the Practice of Psychiatry: A Handbook For Clinicians (1980) p. 14; R. Schwitzge-bel, “The Right to Effective Mental Treatment," 62 Calif. L. Rev. 936 (1974). The standard for determining whether the provisions of § 17-206c have been violated thus cannot depend on the outcome of treatment. For similar reasons, the standard does not sound in negligence.

To recover for a violation of the statute, a plaintiff must prove, as the statute prescribes; Sanders v. Officers Club of Connecticut, Inc., supra, 349; London & Lancashire Indemnity Co. v. Duryea, 143 Conn. 53, 59, 119 A.2d 325 (1955); that the conditions of his hospitalization were statutorily deficient. The plaintiff must allege and prove that the hospital failed initially to provide, or thereafter appropriately to monitor, an individualized treatment suitable to his psychiatric circumstances. In assessing whether the plaintiff has met his burden of proof, the trier of fact must inquire not whether the hospital has made the best decision possible but rather whether its treatment plan was permissible and reasonable in view of the relevant information available and within a broad range of discretion. Tribby v. Cameron, 379 F.2d 104, 105 (D.C. Cir. 1967). The issue, under § 17-206c, is whether the hospital made good faith efforts to improve the patient’s mental health and not whether it succeeded in fulfillment of this goal. See Rouse v. Cameron, supra, 456.

From this perspective, we concur in the determination of the Appellate Court that the plaintiffs’ complaint in this case states a cause of action for violation of § 17-206c. Mahoney v. Lensink, supra, 17 Conn. App. 140-41. In undertaking this determination, as the defendants note, we are “limited to the facts alleged in the plaintiff[s’] complaint.” Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988). While it is true that the complaint does not expressly charge the defendants with a failure to formulate or monitor an individualized treatment plan, it does include allegations that the defendants wrongfully “failed to provide proper counseling, medication, supervision or suicide precautions, so as to prevent the decedent from acting on his suicidal tendencies.” Mahoney v. Lensink, supra, 17 Conn. App. 138-39. Bearing in mind our responsibility to construe the complaint “ ‘in the manner most favorable to sustaining its legal sufficiency’ Warner v. Konover, 210 Conn. 150, 156, 553 A.2d 1138 (1989); Michaud v. Wawruck, 209 Conn. 407, 408, 551 A.2d 738 (1988); we conclude that the complaint sufficiently invokes § 17-206c.

Ill

We turn, finally, to the plaintiffs’ cross appeal, which challenges the validity of the Appellate Court’s ruling that their complaint fails to state a cause of action under § 17-206b. The plaintiffs assert that § 17-206b was intended to secure for mental hospital patients a state statutory remedy for the violation of substantive liberty interests similar to that provided by federal law under 42 U.S.C. § 1983. These substantive liberty interests encompass, according to the plaintiffs, a right to treatment and personal security. The Appellate Court rejected this interpretation, holding instead that the due process guarantee contained in § 17-206b protects only those rights “that a patient may have held absent hospitalization or treatment”; Mahoney v. Lensink, supra, 17 Conn. App. 137-38; such as the right to vote, contract or hold property. We agree with the plaintiffs that the Appellate Court construed § 17-206b too narrowly.

Proper construction of § 17-206b must begin with an examination of its text, which states, in relevant part, that “[n]o patient hospitalized or treated in any public or private facility for the treatment of the mentally disordered shall be deprived of any personal, property or civil rights, including the right to vote, hold or convey property, and contract, except in accordance with due process of law . . . .” The defendants contend that, on its face, the statutory linkage between “personal, property or civil rights” and “the right to vote, hold or convey property, and contract” demonstrates the legislature’s intention to restrict the scope of § 17-206b to those expressly enumerated rights. They rely on the proposition that, in the absence of contrary indication, statutory itemization demonstrates that the legislature intended the list to be exclusive. Kinney v. State, 213 Conn. 54, 63, 566 A.2d 670 (1989); The B. F. Goodrich Co. v. Dubno, 196 Conn. 1, 6, 490 A.2d 991 (1985).

Because the statutory itemization in § 17-206b speaks of “personal, property or civil rights, including the right to vote, hold or convey property, or contract,” (emphasis added) the defendants’ contention is unpersuasive. The legislature’s use of the word “including” rather than the commonly utilized expression, “shall include,” evinces an intention to provide an expansive interpretation of the rights protected by § 17-206b. As we have recognized in the past, the word “include” may be considered a word of enlargement as well as a word of limitation. State v. White, 204 Conn. 410, 422-23, 528 A.2d 811 (1987); Hartford Electric Light Co. v. Sullivan, 161 Conn. 145, 150, 285 A.2d 352 (1971). Since the most likely common use of the term “shall include” is one of limitation; Hartford Electric Light Co. v. Sullivan, supra; the statutory omission of the word “shall” is telling. Webster’s Seventh New Collegiate Dictionary states that the word “include” “suggests the containment of something as a constituent, component, or subordinate part of a larger whole.” The legislative choice of “including” is more likely, as a matter of common sense, to connote that the legislature intended, in § 17-206b, that the listed rights be a vehicle for enlargement rather than limitation. See Murach v. Planning & Zoning Commission, 196 Conn. 192, 196, 491 A.2d 1058 (1985).

Furthermore, an expansive construction of “personal, property or civil rights” is consistent with the usage and interpretation of similarly phrased rights guaranteed by 42 U.S.C. § 1983. The scope of 42 U.S.C. § 1983 is derived, in turn, from the mandates of the due process clause of the United States constitution, and includes not only those rights recognized by the Appellate Court that a patient holds absent hospitalization but more expansively encompasses a right to treatment that results because of hospitalization. Interpreting § 17-206b in conformity with such constitutional requirements is fully consistent with the well established principle of statutory construction that “ ‘a court is justified in holding that a statute was intended to be subject to constitutional requirements, and that those requirements are to be considered as embodied in the statute, if its terms do not exclude such requirements.’ Grega v. Warden, 178 Conn. 207, 210, 423 A.2d 873 (1979).” Bridgeport.Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985). We are therefore persuaded that the freedom from deprivation of “any personal, property or civil rights” provided in § 17-206b includes not only those statutory rights expressly enumerated, but necessarily incorporates as well the freedom from deprivation of “any rights, privileges, or immunities secured by the Constitution” as guaranteed under 42 U.S.C. § 1983.

Although the Appellate Court was correct in concluding that the plaintiffs’ complaint did not allege a violation of the rights specifically enumerated in § 17-206b, that court had no occasion to consider whether the complaint might pass muster under the more expansive construction of § 17-206b as encompassing constitutionally protected liberty interests. The relevant portions of the plaintiffs’ complaint allege that the decedent was entitled as a patient in a state mental health facility to such substantive services as “proper counseling, medication, supervision [and] suicide precautions.” Mahoney v. Lensink, supra, 17 Conn. App. 138-39. As a general matter, the state has no constitutional duty to provide such substantive services for those within its borders. Youngberg v. Romeo, supra, 317; see Maher v. Roe, 432 U.S. 464, 469, 97 S. Ct. 2376, 53 L. Ed. 2d 484 (1977) (medical treatment). When a person has been institutionalized within a state mental health facility, however, the state voluntarily assumes a duty to provide treatment; Youngberg v. Romeo, supra; under conditions of reasonable care and safety; id., 324; and the patient acquires, by virtue of his hospitalization, a constitutionally protected liberty interest under 42 U.S.C. § 1983 in these obligatory services. Moreover, “[o]nce the State assumes responsibility for a patient by admitting him to a State mental hospital that is operating under State authority, the State is acting under color of law. See O’Connor v. Donaldson, 422 U.S. 563, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1975) . . . " Seide v. Prevost, 536 F. Sup. 1121, 1136 (S.D.N.Y. 1982).

Regardless of whether a patient’s admission status is voluntary or involuntary, the state may not subject any citizen “to the deprivation of any rights, privileges, or immunities secured by the Constitution.” 42 U.S.C. § 1983; Seide v. Prevost, supra. While some cases have held that the constitutionally protected interest in the right to treatment and a safe environment available under 42 U.S.C. § 1983 actions is limited to patients who are confined by the state involuntarily; Wyatt v. Aderholt, 503 F.2d 1305, 1312 (5th Cir. 1974); or to voluntary patients who allege a sufficient degree of helplessness; Harper v. Cserr, 544 F.2d 1121, 1123 (1st Cir. 1976); these refinements are not relevant to the construction of § 17-206b. Our statute does not purport to distinguish the rights afforded to mental health patients according to their admission status. We are persuaded, therefore, that the federally recognized right to treatment and to a safe environment applies to all patients within state mental health facilities without regard to the voluntary or involuntary nature of their confinement. This construction finds support in a comparable ruling by the Supreme Court of West Yir-ginia. E. H. v. Matin, 284 S.E.2d 232, 237 (W. Ya. 1981); see also Goodman v. Parwatikar, 570 F.2d 801, 804 (8th Cir. 1978); Seide v. Prevost, supra.

Incorporation of 42 U.S.C. § 1983 standards into § 17-206b does not automatically resolve the question of the sufficiency of the plaintiffs’ complaint. The United States Supreme Court has held, in the context of § 1983 actions, that acts of mere negligence do not violate an individual’s rights under the due process clause of the United States constitution; Davidson v. Cannon, 474 U.S. 344, 346-47, 106 S. Ct. 668, 88 L. Ed. 2d 677 (1986); Daniels v. Williams, 474 U.S. 327, 330-33, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986). We must therefore ascertain whether the allegations of this complaint rise above negligence. Reading the complaint as we must in a light most favorable to the plaintiffs, we conclude that it sufficiently states a cause of action under § 17-206b. As the Appellate Court appropriately noted, “facts similar to these alleged here by the plaintiff[s], that is, failure to restrict or control a patient so as to prevent suicide, have been held to be sufficient to allege such a degree of wanton neglect so as to state a cause of action for violation of a patient’s rights under 42 U.S.C. § 1983.” Mahoney v. Lensink, supra, 17 Conn. App. 140 n.5; see Harper v. Cserr, supra, 1124; cf. Guglielmoni v. Alexander, 583 F. Sup. 821, 827 (D. Conn. 1984) (complaint that alleged prisoner’s civil rights were violated when inadequate supervision and treatment provided during his incarceration resulted in suicide stated a cognizable § 1983 claim, despite contention that eighth amendment does not reach instances of deliberate self-injury). Since we hold that § 17-206b necessarily incorporates those rights afforded under 42 U.S.C. § 1983, it would be inconsistent to find the complaint insufficient for purposes of alleging a violation of § 17-206b at this preliminary stage in the proceedings.

Accordingly, on the appeal, there is no error; on the cross appeal, there is error, the judgment of the Appellate Court is reversed in part and the case is remanded to that court with direction to remand the case to the trial court for further proceedings not inconsistent with this opinion.

In this opinion the other justices concurred.

       General Statutes § 17-206k provides: “Any person aggrieved by a violation of sections 17-206a to 17-206j, inclusive, may petition the superior court within whose jurisdiction the person is or resides for appropriate relief, including temporary and permanent injunctions, or may bring a civil action for damages.”
      General Statutes § 17-206b provides: “No patient hospitalized or treated in any public or private facility for the treatment of the mentally disordered shall be deprived of any personal, property or civil rights, including the right to vote, hold or convey property, and contract, except in accordance with due process of law, and unless he has been declared incompetent pursuant to chapter 779. Any finding of incompetency shall specifically state which civil or personal rights the patient is incompetent to exercise.”
      General Statutes § 17-206c provides in pertinent part: “Every patient treated in any facility for treatment of the mentally disordered shall receive humane and dignified treatment at all times, with full respect for his personal dignity and right to privacy. Each patient shall be treated in accordance with a specialized treatment plan suited to his disorder.”

       The decedent’s statutory right of action under General Statutes § 17-206k survives his death by virtue of General Statutes § 52-599 (a), which provides in pertinent part: “A cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person.” Thus, the decedent’s administrator is a proper party to bring an action pursuant to § 17-206k.

       Alleging that the commissioner of state police is responsible for certain security personnel at Norwich Hospital, the plaintiffs have included him as a defendant in the complaint. With respect to the named defendant, Brian Lensink, commissioner of mental retardation, the plaintiffs have withdrawn their appeal. Mahoney v. Lensink, 17 Conn. App. 130, 131-32 n.1, 550 A.2d 1088 (1988).

       Norwich Hospital comprises one of the public mental health facilities operated by the state department of mental health. See General Statutes § 17-207b (b).

       The Appellate Court also upheld the judgment of dismissal as to the counts in the plaintiffs’ complaint brought in their individual capacities that sought funeral expenses and loss of consortium. Mahoney v. Lensink, 17 Conn. App. 130,141-42, 550 A.2d 1088 (1988). Because the plaintiffs have not challenged the Appellate Court’s ruling on these counts, that judgment is final.

       We certified the following questions in the appeal: (1) Did the enactment of General Statutes § 17-206k waive the sovereign immunity of the state with respect to violations of General Statutes §§ 17-206b and 17-206c? (2) Did the allegations of the plaintiffs’ complaint sufficiently allege a violation of General Statutes §§ 17-206b and 17-206c? The questions certified in the cross appeal were identical.

       The amended complaint, to which the defendants addressed their motion to dismiss, contained twelve counts. The plaintiffs brought counts one through ten on behalf of the estate of their son and counts eleven and twelve on their own behalf. Because the plaintiffs failed to challenge the trial court’s judgment of dismissal as to counts one through nine, that judgment is final. With regard to the disposition of the individual counts for funeral expenses and loss of consortium, see footnote 5, supra.

       General Statutes § 4-142 provides in pertinent part: “There shall be a claims commissioner who shall hear and determine all claims against the state except ... (2) claims upon which suit otherwise is authorized by law. . . .” General Statutes § 4-160 (a) provides in pertinent part: “When the claims commissioner deems it just and equitable, he may authorize suit against the state on any claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable.”

       Because the state acts through its officers and agents, a suit against an officer concerning a matter in which the officer represents the state is, in effect, a suit against the state. University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 388, 512 A.2d 152 (1986); Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977).

       General Statutes § 17-206a (b) defines “patient” expansively as “any person being treated in a facility.” This definition necessarily includes both the involuntary patient “hospitalized pursuant to an order of a judge of the probate court after an appropriate hearing or a patient hospitalized for emergency diagnosis, observation or treatment upon certification of a qualified physician”; General Statutes § 17-206a (e); as well as the voluntary patient “who applies in writing for and is admitted to a hospital for observation, diagnosis or treatment of a mental disorder.” General Statutes § 17-206a (d). To the extent that federal ease law limits right to treatment actions brought under 42 U.S.C. § 1983 to involuntarily confined patients; Wyatt v. Aderholt, 503 F.2d 1305, 1312 (5th Cir. 1974); see Rouse v. Cameron, 373 F.2d 451, 453 (D.C. Cir. 1966); or those voluntary patients who allege a sufficient degree of helplessness; Harper v. Cserr, 544 F.2d 1121, 1123 (1st Cir. 1976); but see Goodman v. Parwatikar, 570 F.2d 801, 804 (8th Cir. 1978); Seide v. Preoost, 536 F. Sup. 1121, 1136 (S.D.N.Y. 1982); see generally comment, “The Mentally Ill in Connecticut — A Survey,” 6 Conn. L. Rev. 303, 309-13 (1973-74); we decline to adopt those federal precedents. “[I]n the construction of our own statute, we exercise plenary authority that is not preempted by federal precedents”; Shortt v. New Milford Police Department, 212 Conn. 294, 306-307, 562 A.2d 7 (1989); and thereby conclude that General Statutes § 17-206k provides direct redress for voluntary as well as involuntary patients of any mental health facility, public or private.

       Because the use of the word “shall” in this context is directed toward a matter of substance, the statutory provision is mandatory. Hall Manor Owner’s Assn. v. West Haven, 212 Conn. 147, 153, 561 A.2d 1373 (1989); Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985).

       See footnote 10, supra.

       General Statutes § 17-206a (a) defines “facility” expansively to mean “any inpatient or outpatient hospital, clinic, or other facility for the diagnosis, observation or treatment of the mentally disordered.” Although the defendants contend that the legislature’s failure to include “public” in General Statutes § 17-206c as it had expressly delineated in General Statutes § 17-206b indicates that a narrower construction of “facility,” limited to those private in nature, is in order, we are unpersuaded. Because the meaning is dependent upon the context and subject matter of the statute, it is apparent here that “any” means “all” or “every.” See King v. Board of Education, 203 Conn. 324, 334, 524 A.2d 1131 (1987). The use of the phrase “any facility” thus necessarily includes those public in nature as well as their private counterparts.

       We have construed “necessary implication” in the context of the construction of a testator’s intent in a will to mean “[t]he probability . . . must be apparent, and not a mere matter of conjecture; but . . . necessarily such that from the words employed an intention to the contrary cannot be supposed.” Weed v. Scofield, 73 Conn. 670, 678, 49 A. 22 (1901).

       Although we usually limit our inquiry of legislative history to remarks made during the debates on the floor of the House of Representatives or the Senate; see State v. Golino, 201 Conn. 435, 445, 518 A.2d 57 (1986); in this case those debates are unilluminating, the relevant statute, Public Acts 1971, No. 834, having been passed in both houses by unanimous consent without recorded discussion. 14 S. Proc., Pt. 7, 1971 Sess., p. 2966; 14 H.R. Proc., Pt. 13, 1971 Sess., pp. 5899-5900. We have occasionally, however, cast a wider net, when committee testimony contains particularly compelling evidence about the problem, issue or purpose underlying a statute. State v. Magnano, 204 Conn. 259, 277, 528 A.2d 760 (1987); Nationwide Itis. Co. v. Gode, 187 Conn. 386, 392 n.6, 395-96, 446 A.2d 1059 (1982); contra Anderson v. Ludgin, 175 Conn. 545, 554 n.8, 400 A.2d 712 (1978); Spring v. Constantino, 168 Conn. 563, 571-72 n.4, 362 A.2d 871 (1975). So it is here.

       The only other testimony before the judiciary committee preserved for judicial notice is that of Samuel S. Goldstein, an attorney, speaking as a past president of the Connecticut Association for Mental Health. His testimony was likewise directed at the practices of state mental hospitals. Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1971 Sess., pp. 640-43.

       Some of these letters have been preserved in the Connecticut State Library, Box 11 of Governor John N. Dempsey's files labelled “State Departments and Agencies” in the folder entitled “Fairfield Hills Hospital.” These letters bear eloquent witness to the deplorable conditions at Fairfield Hills Hospital. “My husband was a patient there for five months last year. For several months he was confined to a ward and never went outdoors for a breath of air. The only walk he got was from the dining room back to his room .... If I didn’t get him out when I did I’m afraid he would be a vegetable by now.” “I was a patient at Fairfield Hills and the [newspaper reports] are true. Signed, A Dehumanized Patient.” “As a former patient at Fairfield Hills Hospital, I would like to relate my experiences there. When I entered the hospital . . . because I was very upset, I was placed in isolation. This consisted of being in a small room by yourself. The treatment I received there was as follows. I was stripped naked with no bed to lie on. I was then locked in. This went on for eight whole days. All this time without the use of a toilet. Therefore the floor took its place. The room had a small pane of safety glass. By which anyone going by could gaze in at me. Here by being on almost public display. When I got a little better and was placed on an open ward ... I still saw and heard much of the same that I myself had been subjected to. . . . At night I went to sleep to the sounds of 3C [the isolation ward]. So I couldn’t really get away from my own personal remembrance of the agony I went through there.”

       This administrative report may be found in the Connecticut State Library, Box 11 of Governor John N. Dempsey’s Files labeled “State Departments and Agencies,” in the folder entitled “Fairfield Hills Hospital.”

       A representative example of such factors may be found in § I of the Task Force Study of Fairfield Hills Hospital entitled “Rights of Patients.” The Task Force expressly found that “[i]nformation from a variety of sources supports the complaints that the dignity of patients is affronted, and that this often begins at time of admission, only in part due to confusion about admission policies. There is evidence of neglect, verbal abuse and dehumanization, without specific measures taken at higher levels to prevent these. Nurses, aides, and other personnel in direct contact with patients reported violations of patients’ rights to toilet facilities, appropriate clothing, and privacy. While such violations might be ostensibly represented as a means of behavioral control, they seem also to be thinly disguised punitive measures promoting humiliation and denigrating individuality and individual needs.
      “Complaints, again both from sources without as well as within the Fair-field Hills Hospital, pointed to limitations of privileges of visitation, access to mail, and others. The effects of these are difficult to view as other than punitive.” Task Force Study of Fairfield Hills Hospital pp. 3-4. The substantive provisions of the patients’ bill of rights bear a close relationship to the findings of the Task Force. See General Statutes § 17-206g, entitled “Communication by mail and telephone”; General Statutes § 17-206h, entitled “Visitors. Restrictions on mail, telephone and visitor privileges, when allowed”; General Statutes § 17-206Í, entitled “Patient’s Rights re clothing, possessions, money and access to records. List of rights to be posted.”

       We may also take judicial notice of a newspaper article occasioned by the public release of the Task Force study of Fairfield Hills Hospital. See Moore v. Moore, 173 Conn. 120, 123 n.l, 376 A.2d 1085 (1977). In light of the report’s revelations about state practices as well as its recommendation for remedial legislation, Ernest A. Shepherd, then acting commissioner of mental health, announced that “his department is in the process of drafting a ‘bill of patients’ rights’ for the next legislature to firm up the whole area.” D. Rhinelander, Hartford Courant, May 28, 1970, p. 12, col. 2.

       As the United States Supreme Court stated in Texas & Pacific Ry. Co. v. Rigsby, 241 U.S. 33, 39, 36 S. Ct. 482, 60 L. Ed. 874 (1916): “A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose special benefit the statute was enacted, the right to recover the damages from the party in default is implied . . . . ” Sullivan v. Little Hunting Park, 396 U.S. 229, 239, 90 S. Ct. 400, 24 L. Ed. 2d 386 (1969).

       See generally T. Gutheil & P. Appelbaum, Psychiatry and the Law (1982). “Since hospital treatment of major mental illness is often a long-term process inducing a generally slow rate of change, there exists a danger that treatment processes will be instituted on the basis of admission symptomatology, and that this treatment will proceed unaltered and hence unresponsive to subtle (or even gross) improvement (or deterioration) in the patient’s clinical state. This danger may be largely avoided by regular review of the treatment plan, addressing in particular whether or not the specific goals of the interventions have been achieved. This means, quite simply, deciding what is not working, and changing or stopping it; and deciding what is working and continuing that.” Id., p. 109.

       First credited with legal recognition of a right to treatment; see Rouse v. Cameron, 373 F.2d 451 (D.C. Cir. 1966); Chief Judge David Bazelon made the following statement in Ms introduction to a symposium on the subject: “To perform this task the judge need not be or even pretend to be a psychiatrist. His role is not to make independent judgments concerning treatment but rather to scrutinize the record to ensure that an expert more qualified than he has made a responsible exercise of his professional judgment. Courts have long fulfilled this role in supervising administrative agencies. Every regulatory agency is charged with the enforcement of a broad statute or statutes which require highly specialized training and knowledge; the legislature provides a broad standard, the administrator develops workable rules and procedures, and the court ensures that the standard and rules are evenhandedly applied to individuals. The role of the court in reviewing determinations of a mental health administrator should be similar to its role in any administrative review.’’ D. Bazelon, Introduction, The Right To Treatment (D. Burris ed. 1969) p. 3.


author: Per Curiam.

text:
    Connecticut Bank and Trust Company v. Dexter D. Coffin, Jr., et al. Connecticut Bank and Trust Company v. Dexter D. Coffin IV et al.
    (13645)
    (13674)
    Peters, C. J., Healey, Shea, Callahan and Glass, Js.
    Argued December 12, 1989
    decision released January 30, 1990

      Bruce G. MacDermid, with whom, on the brief, were Richard R. Steinmetez, Robert A. Horowitz, Mark Gregory, Austin J. McGuigan and Joseph B. Bums, for the appellants (defendant Sean Van Schoonmaker Coffin and defendant Neil Elliott et al.).

      Elga R. Wasserman, with whom, on the brief, were Jacob D. Zeldes, Frank J. Silvestri, Jr., and David P. Atkins, for the appellees (defendant Martha E. Coffin et al.).

      John L. Bonee III, for the appellee (defendant Kathryn Blaire Greenhalgh).

      Timothy S. Fisher, with whom was Christopher J. Hug and, on the brief, George G. Hastings and Linda M. Hamel, for the appellee (plaintiff in each case).

      Stephen B. Goddard filed a brief for the appellee (defendant Lance Justin Coffin).
   Per Curiam.

Both of these appeals arise from a declaratory judgment action brought by the plaintiff bank as a trustee to determine which of the defendants are the “issue” of Dexter D. Coffin, Jr., and thus beneficiaries of an inter vivos trust created by his father, Dexter D. Coffin, and of testamentary trusts created by both his parents.

In Connecticut Bank & Trust Co. v. Coffin, 212 Conn. 678, 563 A.2d 1323 (1989), (Coffin I), this court found no error in the trial court’s construction of the trust indenture executed by Dexter D. Coffin on April 30, 1957, to exclude as beneficiaries of the trust any children who had been adopted by his son, Dexter D. Coffin, Jr., and his grandson, Dexter D. Coffin III, but to include Kathryn Blaire Greenhalgh, the settlor’s great-granddaughter, who had been adopted out of the Coffin family after dissolution of her mother’s marriage to Dexter D. Coffin III. The present appeals concern, not the 1957 trust, but the wills of Dexter D. Coffin and his wife, Elizabeth Dorr Coffin, dated October 2, 1964, and July 31, 1963, respectively, which were admitted to probate following their deaths. Each of the wills created a trust for the benefit of Dexter D. Coffin, Jr., his wife, Joyce C. Coffin, and the “issue” of Dexter D. Coffin, Jr., and also contained a paragraph declaring that the term “issue” was not intended to include adopted persons and their issue. A similar paragraph is contained in the 1957 trust instrument that we construed in Coffin I.

The trial court decided to give the word “issue” as used in the testamentary trusts the same meaning it had attributed to that word in the 1957 trust, thereby excluding as beneficiaries the children adopted by Dexter D. Coffin, Jr., and Dexter D. Coffin III, but including Kathryn Blaire Greenhalgh. The children adopted into the Coffin family by Dexter D. Coffin, Jr., and Dexter D. Coffin III have appealed from that judgment. They raise claims concerning the construction of the testamentary trusts that are similar to those we considered in Coffin I but found unpersuasive. In addition, however, they rely upon the enactment in 1959 of the predecessor to General Statutes § 45-64a (4), which reversed the common law presumption that adopted children are not included in the term “issue,” but restricted the scope of the statute to “any will or trust instrument executed after October 1, 1959,” thus precluding its application to the 1957 trust indenture. Public Acts 1959, No. 106. We find our decision in Coffin I to be largely dispositive of the claims relating to the construction of the language of the testamentary trusts. We also conclude that the enactment of the statutory provision including adopted children in the term “issue” does not require that we impute a different intention to the testators in using that word than the intention indicated by its use in the 1957 trust instrument. Accordingly, we find no error in the judgment.

The wills of both Dexter D. Coffin and his wife contained a provision declaring that the word “issue” should not include “adopted persons” and specifically excluding Robert L. Olmstead, their grandson, who had been adopted out of the Coffin family after the divorce of his parents, Dexter D. Coffin, Jr., and Betsy Bisell Coffin, and her remarriage to Theodore Olmstead.* *** Although there are some variations in phraseology, there is no significant difference in this provision as contained in each will from the corresponding provision of the inter vivos trust that we construed in Coffin I to exclude children adopted into the Coffin family as beneficiaries of the trust. The parties do not claim otherwise. In Coffin I, however, we did rely upon the common law presumption that the word “issue” connotes a lineal relationship by blood; Schapira v. Connecticut Bank & Trust Co., 204 Conn. 450, 455, 528 A.2d 367 (1987); which has been reversed by the 1959 enactment. This statutory provision, declaring that “ ‘issue’ . . . when used in any will or trust instrument executed after October 1,1959, shall, unless the document clearly indicates a contrary intention, include legally adopted persons,” would require a different result than that reached in Coffin I, unless the wills plainly disclose a “contrary intention.”

The declaration in the wills that the term “issue” was not intended to include “adopted persons,” however, “clearly indicates a contrary intention” to that otherwise required by the statute to be ascribed to the use of that term. It is plain that the testators intended to exclude “adopted persons” as beneficiaries of the trusts, although, as we observed in Coffin I, supra, 693, that exclusion “is ambiguous in that it conceivably may refer to those adopted into the Coffin family, to those adopted out of the family, or to both.” We also noted that “[t]he purpose of the exclusion would, of course, be wholly defeated if the phrase were construed to apply to neither of these classes of adopted persons, because it would then be of no effect.” Id. We concluded in Coffin I that the reference to “adopted persons” pertained only to those who had been adopted into the Coffin family, except for Robert L. Olmstead, who had been adopted out of the Coffin family but had been excluded as a beneficiary by name. Accordingly, relying upon the trial court’s finding that the settlor had never intended to “cut off” his blood descendants, other than Olmstead, we held that Kathryn Blaire Green-halgh, by blood a great-granddaughter of the settlor who had been adopted out of his family, was entitled to share with other “issue” of the settlor as a beneficiary.

We have concluded that the 1959 enactment does not control the construction of the term “issue” in the testamentary trusts because of the clearly expressed intention of the testators to exclude “adopted persons” as beneficiaries. In Coffin I we resolved the ambiguity inherent in the term “adopted persons” by affirming the trial court’s finding, based upon the testimony presented, that Dexter D. Coffin, as settlor of the 1957 trust, intended to refer only to persons adopted into the Coffin family and not to blood descendants who might be adopted out of the family, except for the specific exclusion of Olmstead. At the time the inter vivos trust was executed, April 30, 1957, both Dexter Coffin and his wife also executed wills that contained clauses excluding “adopted persons” as “issue” in language substantially similar to the corresponding provision of the trust. The same clauses, with insignificant deviations in phraseology, were included in several wills that each testator executed after that date. There is no reason to suppose that Dexter D. Coffin and his wife had any different intention, at the time they executed their last wills, from that entertained when the trust containing the same exclusion of “adopted persons” was executed. We agree with the trial court that the scope of that exclusion in the testamentary trusts is the same as in the 1957 inter vivos trust.

There is no error.

       The trial court rendered its decision on the questions involving the inter vivos trust on January 30,1987. After appeals from that judgment had been filed, but before publication of the opinion of this court in Connecticut Bank & Trust Co. v. Coffin, 212 Conn. 678, 563 A.2d 1323 (1989), disposing of those appeals on August 22, 1989, the trial court on December 22, 1988, rendered its judgment concerning the testamentary trusts, from which the present appeals have been taken.

       Dexter D. Coffin, Jr., adopted the children of his third wife, Mary K. Elliott. These children have been referred to as the Elliott children in this litigation.

       Dexter D. Coffin III adopted Sean Van Schoonmaker Coffin, a child of his second wife, Elaine Van Schoonmaker. Dexter D. Coffin III also adopted the children of his third wife, Joanne Fogerty. These children have been referred to as the Fogerty children.

       Number 106 of the 1959 Public Acts, provided as follows: “The words ‘child’, ‘children’, ‘issue’, ‘descendant’, ‘descendants’, ‘heir’, ‘heirs’, ‘lawful heirs’, ‘grandchild’ and ‘grandchildren’, when used in the singular or plural in any will or trust instrument, shall, unless such document clearly indicates a contrary intention, include legally adopted persons. Nothing herein shall be construed to alter or modify the provisions of section 45-162. The provisions of this act shall apply to wills and trust instruments executed subsequent to the effective date hereof [October 1, 1959].” At the time the last wills of Dexter D. Coffin and Elizabeth Dorr Coffin were executed on October 2, 1964, and July 31,1963, respectively, this enactment had been designated as General Statutes § 45-65a and had been revised by substituting “October 1,1959” for “the effective date hereof.” General Statutes 1965 Cumulative Supplements (1959-65). As revised, this provision has currently been incorporated into General Statutes § 45-64a (4), as follows: “The adopted person shall, except as hereinafter provided, be treated as if he were the genetic child of the adopting parent for purposes of the applicability of all documents and instruments, whether executed before or after the adoption decree is issued, which do not expressly exclude an adopted person in their operation or effect. The words ‘child,’ ‘children,’ ‘issue,’ ‘descendant,’ ‘descendants,’ ‘heir,’ ‘heirs,’ ‘lawful heirs,’ ‘grandchild’ and ‘grandchildren,’ when used in any will or trust instrument shall include legally adopted persons unless such document clearly indicates a contrary intention. Nothing in this section shall be construed to alter or modify the provisions of section 45-162 regarding children born through A.I.D.”

       In the will of Dexter D. Coffin, executed on October 2, 1964, this provision was as follows: “The term ‘issue’ as used in this will is not intended to include adopted persons and their issue. Wherever in this will reference is made to the issue of sons of mine or to my issue, the term ‘issue’ shall be deemed not to include my grandson Robert L. Olmstead (formerly Robert Linwood Coffin) or any issue of said grandson, and no part of the net income or principal of my estate or of any trust hereby created shall be paid to my said grandson or to any issue of his.”
      The corresponding provision of the will of Elizabeth Dorr Coffin, executed on July 31, 1963, was identical.

       The comparable provision of the 1957 trust indenture was as follows: “SECOND: Wherever in this trust indenture reference is made to the ‘issue’ of the grantor’s son Dexter D. Coffin, Jr., the term ‘issue’ shall be deemed not to include the grantor’s said grandson Robert L. Olmstead or any issue of said grandson, and no part of the net income or principal of the trust fund shall be paid to the grantor’s said grandson Robert L. Olmstead or to any issue of said grandson. The term ‘issue’ as used in this trust indenture is not intended to include adopted persons and their issue.”