author: MCDONALD, J. A

text:
    STATE OF CONNECTICUT v. MICHAEL ANTHONY EDWARDS
    (SC 15585)
    Callahan, C. J., and Borden, Norcott, Palmer and McDonald, Js.

      Argued September 24
    officially released December 22, 1998

      James Moreno, special public defender, for the appellant (defendant).

      Lisa Herskowitz, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Kevin Murphy, assistant state’s attorney, for the appellee (state).
   Opinion

MCDONALD, J. A

jury convicted the defendant, Michael Anthony Edwards, of murder in violation of General Statutes § 53a-54a, and acquitted him of criminal possession of a firearm in violation of General Statutes § 53a-217 and criminal possession of a pistol in violation of General Statutes § 53a-217c. The defendant appeals to this court pursuant to General Statutes § 51-199 (b) (3). The defendant claims that: (1) the evidence was insufficient to prove beyond a reasonable doubt that he had intended to cause the death of the victim, George Wright; (2) the trial court improperly denied his motion for a new trial, in which he claimed that the evidence presented at trial supported a conviction of a lesser included offense; (3) the trial court improperly instructed the jury on intent to kill by failing to reiterate in a supplemental instruction that “intentional conduct is purposeful conduct rather than conduct that is accidental or inadvertent”; and (4) the trial court improperly instructed the jury on reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During the evening of February 18, 1995, the defendant, after closing the family grocery store in which he had been working, approached the victim on Albany Avenue in Hartford. The two men, who were not friendly, exchanged angry words, and the defendant grabbed the victim’s clothing and held a gun to his head. The defendant then shoved the victim backwards along the sidewalk in front of the store. The victim did not resist, but said “no, no, no.” The defendant then pushed the victim’s head down and shot him in the head. The victim fell to the sidewalk. The bullet entered the left side of the back of the victim’s head, behind the left ear, traveled through the base and right side of the brain and lodged near his right eye. The victim died the following day of injuries sustained as a result of the gunshot wound.

I

The defendant first claims that the evidence was insufficient to establish that he had the specific intent, required for a murder conviction, to cause the victim’s death. The defendant argues that because the jury acquitted him of the two weapon possession charges, it must have found that he did not possess or arrive at the scene with a weapon on the night of the shooting. The defendant presented evidence that the victim had been armed with a gun and that, in a struggle, the defendant had gained possession of the gun and accidentally shot the victim with it. The defendant argues that because he did not possess or arrive at the scene with a weapon, he could not have had the specific intent to cause the victim’s death. We conclude that there was sufficient evidence for the jury to have found beyond a reasonable doubt that the defendant had the specific intent to cause the victim’s death.

“We apply a two part test in analyzing a sufficiency of the evidence claim. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. Greenfield, [228 Conn. 62, 76, 634 A.2d 879 (1993)]. . . . State v. Mejia, 233 Conn. 215, 223, 658 A.2d 571 (1995).” (Internal quotation marks omitted.) State v. Gould, 241 Conn. 1, 6, 695 A.2d 1022 (1997). While the jury must find every element proven beyond a reasonable doubt to find the defendant guilty of the charged offense, direct evidence of intent is not required. See, e.g., State v. Blackman, 246 Conn. 547, 559, 716 A.2d 101 (1998). If it is reasonable and logical for the jury to conclude from the circumstances that the defendant had an intent to cause death, the jury may determine that the cumulative effect of all the evidence proves the defendant guilty of that element of the murder charge beyond a reasonable doubt. See id. “The intent of the actor is a question for the trier of fact, and the conclusion of the trier in this regard should stand unless it is an unreasonable one.” State v. Avcollie, 178 Conn. 450, 466, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980).

We disagree with the defendant that a lack of specific intent to cause death must follow a jury finding that the defendant did not possess or arrive at the scene with a weapon. There was ample evidence, which the jury could have credited, unrelated to the possession of any weapon, that the defendant had the specific intent necessary for a murder conviction. Specifically, there was eyewitness testimony that the defendant and the victim were arguing prior to the shooting, and that the defendant shot the victim in the head at close range. “We have stated that [o]ne who uses a deadly weapon upon a vital part of another will be deemed to have intended the probable result of that act, and from such a circumstance a proper inference may be drawn in some cases that there was an intent to kill. . . . State v. Holley, 174 Conn. 22, 26, 381 A.2d 539 (1977). . . . State v. Stanley, 223 Conn. 674, 680, 613 A.2d 788 (1992).” (Internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 259, 681 A.2d 922 (1996). In this case, the acquittals on both weapon possession charges do not preclude a finding that the defendant intended to cause the victim’s death.

The defendant also claims that the testimony of certain of the state’s witnesses was biased, varied greatly and contained many contradictions. The defendant claims that all but one of the state’s witnesses were related to the victim. The state counters that, of the five eyewitnesses to the shooting, only two, a sister and an aunt, were members of the victim’s family. Because of these circumstances, the defendant argues that “the existence of evidence establishing beyond a reasonable doubt that [the defendant] possessed the specific intent to kill [the victim] is virtually nonexistent.”

As to any conflicting testimony provided by the state’s witnesses, we follow the well established rule that we “must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . . State v. Mejia, supra, [233 Conn.] 224. . . . State v. James, 237 Conn. 390, 435-36, 678 A.2d 1338 (1996).” (Internal quotation marks omitted.) State v. Gould, supra, 241 Conn. 6-7. When conflicting testimony is presented, the jury may credit the testimony it finds believable. See State v. Person, 236 Conn. 342, 347, 673 A.2d 463 (1996).

We conclude that, from the evidence presented, the jury reasonably could have found that the defendant possessed the specific intent to cause the victim’s death.

II

The defendant next claims that the trial court abused its discretion in denying his postverdict motion for a new trial. In this motion, he argued for the first time that the evidence at trial supported only a conviction for some lesser included offense of murder. The defendant never identified such lesser included offenses. At trial, the defendant did not request instructions on any lesser included offenses. Rather, he pursued a trial strategy of “all or nothing” by refusing such instructions in order to force the jury to choose between an acquittal and a murder conviction. The defendant does not now claim that the trial court improperly failed to instruct the jury on lesser included offenses. Rather, the defendant seeks a new trial on lesser included offenses pursuant to Practice Book § 42-51, formerly Practice Book § 899.

Practice Book § 42-51 provides: “If the jury return a verdict of guilty, the judicial authority, upon motion of the defendant or upon its own motion, shall order the entry of a judgment of acquittal as to any offense specified in the verdict, or any lesser included offense, for which the evidence does not reasonably permit a finding of guilty beyond a reasonable doubt. If the judicial authority directs an acquittal for the offense specified in the verdict, but not for a lesser included offense, it may either: (1) [m]odify the verdict accordingly; or (2) [g]rant the defendant a new trial as to the lesser included offense.” The defendant argues that a new trial on lesser included offenses is appropriate because the evidence was insufficient to prove the specific intent necessary to convict the defendant of murder. We disagree.

Section 42-51 is derived from rule 551 (b) of the Uniform Rules of Criminal Procedure. 4 L. Orland & D. Borden, Connecticut Practice Book Annotated: Superior Court Criminal Rules (2d Ed. 1996) § 899, p. 512, historical note. The last sentence of rule 551 (b) is derived from subdivision (6) of § 1181 of the California Penal Code. See Unif. R. Crim. P. 551 (b), 10 U.L.A. 291-92 comment (1974). Section 1181 of the California Penal Code provides in relevant part: “When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases .... 6. When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed . . . .” Cal. Penal Code § 1181 (6) (Deering 1993). With reference to § 1181 (6), the California Supreme Court has explained that an appellate court may not “reduce the degree of the crime unless the evidence is legally insufficient to support the higher degree of which defendant was convicted . . . .” People v. Daugherty, 40 Cal. 2d 876, 884, 256 P.2d 911, cert. denied, 346 U.S. 827, 74 S. Ct. 47, 98 L. Ed. 352 (1953), citing People v. Daniel, 65 Cal. App. 2d 622, 151 P.2d 295 (1944). The court further stated that “an appellate court cannot reduce the degree [of the crime] if there is substantial evidence to support the finding of a higher degree.” People v. Daugherty, supra, 886; see also People v. Lamothe, 222 Cal. App. 2d 314, 321, 35 Cal. Rptr. 122 (1963).

A

We conclude that a new trial on a lesser included offense should be ordered by this court under Practice Book § 42-51 only if this court finds that “the evidence [did] not reasonably permit a finding of guilty beyond a reasonable doubt” as to the greater offense. Practice Book § 42-51. As we stated in part I of this opinion, the jury reasonably could have found, based on the evidence at trial, that the defendant had the specific intent necessary for a murder conviction. The defendant has not demonstrated that the evidence supporting the murder conviction was insufficient as a matter of law.

B

“Appellate review of a trial court’s decision granting or denying a motion for a new trial must take into account the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided.” State v. Hammond, 221 Conn. 264, 269, 604 A.2d 793 (1992). We review the trial court’s denial of the postverdict motion for a new trial to determine if the court abused its discretion. See id., 270.

In determining whether to overturn the jury’s verdict and grant a new trial, the trial court properly determined that “the jury could reasonably have concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt”; State v. Avcollie, supra, 178 Conn. 458; and properly gave the evidence “a construction which [was] most favorable to the sustaining of the jury’s verdict.” Id., 461.

We conclude that the trial court did not abuse its discretion in denying the defendant’s motion for a new trial.

Ill

The defendant next claims that the trial court improperly instructed the jury in response to the jury’s question regarding the definition of specific intent. Although the defendant did not raise this claim in the trial court, he contends that he may prevail on it under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In Golding, we held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond areasonable doubt.” (Emphasis in original.) Id., 239-40. We agree that the record is adequate for review and that the defendant raises a constitutional claim. “[A]n improper instruction on an element of an offense . . . is of constitutional dimension.” (Internal quotation marks omitted.) State v. Austin, 244 Conn. 226, 235, 710 A.2d 732 (1998).

We, therefore, consider the third prong of Golding. The defendant asserts that the trial court, in response to the jury’s question, omitted key portions of its earlier charge. The question, as characterized by the court, was: “[D]oes intent to kill as defined require defendant’s sound mind or consciousness, i.e., fit of rage, survival, instinct, et cetera?” In its initial charge on intent, but not in its response to the jury’s question, the court had explained that “[i]ntentional conduct is purposeful conduct rather than conduct that is accidental or inadvertent.” The state counters that it is not reasonably possible that the court’s supplemental instruction misled the jury into believing that it could convict the defendant of murder if it believed the shooting was accidental. We agree with the state.

“Our analysis begins with a well established standard of review. When reviewing the challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Denby, 235 Conn. 477, 484-85, 668 A.2d 682 (1995).

Upon examining the entire jury charge, we conclude that the trial court properly instructed the jury on specific intent. Twice in its initial charge, the trial court told the jury that conduct could not be intentional if it was accidental or inadvertent. The trial court did not contradict its earlier instructions in the supplemental charge. Furthermore, the jury’s question concerned the defendant’s mental or emotional state, not the issue of accident or inadvertence. We conclude that the defendant has demonstrated neither that an alleged constitutional violation clearly exists nor that he was deprived of a fair trial. Therefore, the defendant has failed to satisfy the third prong of Golding.

IV

The defendant finally claims that the trial court improperly instructed the jury on reasonable doubt. Notwithstanding our precedent to the contrary, the defendant contends that the following instruction deprived him of his state and federal constitutional rights to due process and to a fair trial before an impartial jury: “A reasonable doubt is not a doubt which is raised by someone simply for the sake of raising doubts. Nor is it a doubt suggested by the ingenuity of counsel or any of the jurors which is not justified by the evidence or lack of evidence.” The defendant did not raise this claim at trial and seeks to prevail under Golding. This claim is without merit.

This claim is controlled by State v. Taylor, 239 Conn. 481, 503-505, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997). In Taylor, we effectively addressed the claim made here. The defendant in Taylor alleged that precisely the same charge violated his state and federal constitutional rights to due process of law. Id., 504. We held that the defendant had not demonstrated “the existence of an error of constitutional dimension”; id., 505; and, thus, failed to meet the third prong of the Golding test. As we stated in Golding, “[t]he appellate tribunal is free ... to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” State v. Golding, supra, 213 Conn. 240.

In Taylor, acting pursuant to our supervisory power, we urged trial courts to avoid further use of the phrase “ingenuity of counsel” because, “taken in isolation [it] conceivably could misdirect the jury’s attention . . . .” State v. Taylor, supra, 239 Conn. 504. We adhere to that admonition. The trial court in this case, however, cannot be faulted for failing to heed that warning as the court instructed the jury in May, 1996, while our decision in Taylor was not released until December, 1996.

The defendant has not offered any reason for reversing Taylor and, indeed, did not specifically address Taylor in his brief or at oral argument. Considering the trial court’s instructions in their entirety, we conclude that the trial court’s instruction on reasonable doubt did not deprive the defendant of his constitutional rights to due process and a fair trial.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-54a provides in relevant part: “Murder, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person ... by force, duress or deception . . . .”

       General Statutes § 53a-217 provides in relevant part: “Criminal possession of a firearm or electronic defense weapon . . . . (a) A person is guilty of criminal possession of a firearm or electronic defense weapon when he possesses a firearm or electronic defense weapon and has been convicted of a capital felony [or] a class A felony, except a conviction under section 53a-196a . . . .”

       General Statutes § 53a-217c provides in relevant part: “Criminal possession of a pistol or revolver . . . . (a) A person is guilty of criminal possession of a pistol or revolver when he possesses a pistol or revolver, as defined in section 29-27, and (1) has been convicted of a felony . . . .”

       General Statutes (Rev. to 1997) § 51-199 (b) provides in relevant part: “The following matters shall be taken directly to the Supreme Court . . . (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony ... for which the maximum sentence which may be imposed exceeds twenty years . . . .” Although not relevant to this appeal, § 51-199 (b) recently was amended by Public Acts 1997, No. 97-178, § 2.

       The trial court summarized “a discussion with the defense and the state concerning any requested lesser included offenses. . . . [N]either side wishes the court to instruct on any lesser included offenses of murder.” After the state accepted the trial court’s summary, defense counsel stated: “That is a fair statement from the defense point of view, also.”
      “It may be sound trial strategy not to request a lesser included offense instruction, hoping that the jury will simply return a not guilty verdict.” Fair v. Warden, 211 Conn. 398, 404, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S. Ct. 512, 107 L. Ed. 2d 514 (1989).

       Rule 551 (b) of the Uniform Rules of Criminal Procedure provides: “Upon verdict of guilty. If the jury returns a verdict of guilty, the court, upon motion of the defendant or its own motion, shall order the entry of a judgment of acquittal as to any offense specified in the verdict, or lesser included offense, for which the evidence does not or would not reasonably permit a finding of guilty beyond a reasonable doubt. If the court directs an acquittal for the offense specified in the verdict, but not for a lesser included offense, it may either:
      “(1) Modify the verdict accordingly, or
      “(2) Grant the defendant a new trial as to the lesser included offense.” Unif. R. Crim. P. 551 (b), 10 U.L.A. 291 (1974).

       The trial court responded to the jury’s question as follows: “You are the triers of the fact. It is for you to determine, solely determine, what the defendant’s state of mind was at the time that he is alleged to have committed this crime. However, I have instructed you legally that there is a specific legal standard in a crime of murder as to that state of mind meaning intent and I have defined intent for you. And you must take the legal definition that I have given to you to determine whether or not the state has met one of the essential elements of the crime of murder. And that is that the defendant acted with intent as I have explained that to you. So I will remind you that the legal definition that you must apply is as follows: A person acts intentionally with respect to a result when his conscious objective is to cause such a result. It is your responsibility to determine factually what the defendant’s state of mind was. Whether or not you determine, based upon all of the evidence, whether or not the defendant acted with the necessary legal state of mind intentionally as I have just defined that term for you with respect to the essential elements of the crime of murder. I hope that helps you. If it doesn’t and if we can be more helpful in some way, send out another note. If it answers your question, then I will ask that you continue to deliberate.” (Emphasis added.)

       The two relevant portions of the charge were: (1) “Intentional conduct is purposeful conduct rather than conduct that is accidental or inadvertent”; and (2) “A killing cannot be intentional if it was the result of an accident.”

       “As an appellate court, we possess an inherent supervisory authority over the adiuinistration of justice.” State v. Patterson, 230 Conn. 385, 397, 645 A.2d 535 (1994), on appeal after remand, 236 Conn. 561, 674 A.2d 416 (1996).


source: Caselaw Access Project

author: BERDON, J.

license: Public Domain

text:
    KENT WILLARD v. TRAVELERS INSURANCE COMPANY
    (SC 15870)
    Borden, Berdon, Norcott, Palmer and McDonald, Js.
    Argued September 23
    officially released December 29, 1998

      John W. Mills, with whom was John H. Peck, Sr., for the appellant (plaintiff).

      Scott P. Myers, with whom was David J. Elliott, for the appellee (defendant).
   Opinion

BERDON, J.

The principal issue in this appeal is whether collateral estoppel may be used against a party who was not permitted to intervene in a prior proceeding that resulted in a default judgment adverse to that party. We answer this question in the negative.

In 1989, the plaintiff, Kent Willard, commenced an action against John J. Brotz, Jr., for damages arising from personal injuries (personal injury action). Willard alleged that Brotz assaulted him, subjected him to false imprisonment, and negligently forced him to exit a moving vehicle. In his complaint, Willard also alleged that Brotz was a resident of his parents’ household on the date of the injury. At that time, Brotz’ parents were the named insureds in a homeowner’s liability policy (policy) issued by the defendant, Travelers Insurance Company (Travelers). This policy provided $300,000 in liability coverage for the named insureds and any relatives who were “residents of [their] household.” Travelers retained an attorney to appear on behalf of Brotz in the personal injury action. This attorney filed an answer on behalf of Brotz admitting that Brotz resided with his parents at the time of the incident with Willard.

In 1992, Travelers brought an action against Brotz seeking a declaratory judgment that Brotz was not entitled to coverage under the policy because he was not a resident of his parents’ household at the time Willard was injured (declaratory judgment action). While the declaratory judgment action was pending, Brotz was incarcerated in a number of different drug and alcohol treatment facilities; he never filed an appearance.

Willard moved to intervene in the declaratory judgment action as a necessary party defendant. Travelers objected, arguing that Willard possessed “no existing, direct legal or equitable ‘interest’ in the subject matter of [the] declaratory judgment action . . . .” The trial court, Walsh, J., denied Willard’s motion to intervene; Willard did not appeal.

Thereafter, Travelers obtained a default against Brotz for failure to appear in the declaratory judgment action. Travelers moved for judgment on the default, on the ground that Brotz was not an insured under the policy and that Travelers, therefore, was not obligated to defend Brotz in the personal injury action. The court granted the motion and, accordingly, rendered a declaratory judgment against Brotz.

After judgment was rendered in the declaratory judgment action, Travelers instructed its attorney to withdraw his appearance on behalf of Brotz in the personal injury action brought by Willard. On February 28, 1995 — after Brotz had been defaulted for failure to appear — judgment was rendered against Brotz in the amount of $105,695. Willard brought the present action against Travelers pursuant to General Statutes § 38a-321 (direct action) in order to satisfy the judgment in the personal injury action, which Travelers refused to do.

Travelers moved for summary judgment on two grounds: (1) as a result of the default judgment obtained against Brotz in the declaratory judgment action, Willard was collaterally estopped from relitigating the issue of Brotz’ coverage under the policy and (2) even if not collaterally estopped, Willard was not entitled to recover from Travelers because Brotz was not a resident of his parents’ home at the time of the incident and thus was not an insured under the policy issued by Travelers. The trial court, Gray, J., denied both this motion for summary judgment and a subsequent motion to reargue. Shortly before the court trial was scheduled to commence before a different judge, Travelers filed a motion in limine that sought for a third time to apply the doctrine of collateral estoppel to bar' Willard’s direct action. The trial court, Hon. Anthony V. DeMayo, judge trial referee, granted the motion in limine and, consequently, rendered judgment in favor of Travelers. Willard appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1, formerly § 4023, and General Statutes § 51-199 (c). We reverse the trial court’s judgment.

I

By arguing that collateral estoppel bars the plaintiffs direct action suit, Travelers urges us to disregard the fact that Willard neither litigated any issue in the declaratory judgment action nor was permitted to do so. Travelers reasons as follows: “Because Willard’s rights [under the direct action statute] derive exclusively and entirely from Brotz’ rights in the [policy], a judgment declaring that Brotz was not an insured under the [policy] is also binding on Willard.” In other words, Travelers claims that Willard should be estopped because he is in privity with Brotz.

We recently discussed collateral estoppel in the context of the direct action statute in Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 596 A.2d 414 (1991), which involved the following facts. Russell F. Manfredi was accused of killing his wife. Following a criminal trial, Manfredi was convicted of first degree manslaughter. In order to reach this verdict, the jury necessarily had to conclude beyond a reasonable doubt that Manfredi intended to kill his wife. In a civil action brought by Margaret Billings Jones — the administratrix of the wife’s estate — Manfredi was found hable for the wrongful death of his wife. After the close of the criminal trial, Manfredi’s insurer — Aetna Casualty and Surety Company (Aetna) — brought a declaratory judgment action against Jones to determine its liability to her for this civil judgment. Aetna claimed that the jury’s finding of intent in the criminal trial absolved it of any liability under Manfredi’s insurance policy, which covered only negligent acts. For reasons discussed more fully below, we concluded that Jones was collaterally estopped from relitigating the issue of intent. Willard argues that the facts of the present case differ so fundamentally from those involved in Jones that we should reach the opposite result in this case and decline to apply principles of collateral estoppel. We agree. *7

We explained in Jones that “ [collateral estoppel may be invoked against a party to a prior adverse proceeding or against those in privity with that party. State v. Fritz, 204 Conn. 156, 172, 527 A.2d 1157 (1987); P. X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 161, 454 A.2d 1258 (1983); State v. Wilson, 180 Conn. 481, 486, 429 A.2d 931 (1980). While it is commonly recognized that privity is difficult to define, the concept exists ‘to ensure that the interests of the party against whom collateral estoppel is being asserted have been adequately represented because of his purported privity with a party at the initial proceeding.’ State v. Fritz, supra, 173.” (Emphasis added.) Aetna Casualty & Surety Co. v. Jones, supra, 220 Conn. 303-304.

In this case, the most that Travelers can claim is that “Brotz was situated to protect Willard’s” interest. (Emphasis added.) Travelers does not — and could not— maintain that Brotz or anyone else did in fact protect Willard’s interests. It is of no moment that, as Travelers argues, “if Brotz has no rights in the [policy], then neither does Willard.” While this statement is technically accurate, it entirely misses the mark. The dispositive question is not what happens once Brotz’ coverage has been conclusively established but, rather, whether the declaratory judgment action conclusively established Brotz’ coverage for purposes of Willard’s direct action suit. It is this latter question that we answer in the negative.

In Jones, we determined that, pursuant to the direct action statute, “the rights of the estate [were] entirely dependent upon and limited by the rights of Manfredi.” Aetna Casualty & Surety Co. v. Jones, supra, 220 Conn. 306. Accordingly, we concluded that Jones and Manfredi were in privity with one another. That, however, was merely the beginning of our analysis. In the very next paragraph, we explained that, “where there is a lack of mutuality [of parties] or the doctrine of privity is raised, the court must make certain that there was a full and fair opportunity to litigate. The requirement of full and fair litigation ensures fairness, which is a ‘crowning consideration’ in collateral estoppel cases.” Id. In the present case, considerations of equity bar the invocation of collateral estoppel. We address several of these considerations seriatim.

It is well established that “[collateral estoppel . . . prohibits the relitigation of an issue when that issue was actually litigated ... in a prior action . ... In re Juvenile Appeal (83-DE), 190 Conn. 310, 316, 460 A.2d 1277 (1983). For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. . . . Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988); see also Ashe v. Swenson, 397 U.S. 436, 445, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970); State v. Hope, 215 Conn. 570, 584, 577 A.2d 1000 (1990), cert. denied, 498 U.S. 1089, 111 S. Ct. 968, 112 L. Ed. 2d 1054 (1991).” (Emphasis altered; internal quotation marks omitted.) Jackson v. R. G. Whipple, Inc., 225 Conn. 705, 714, 627 A.2d 374 (1993). In the final sentence of Jones, we drove this point home by explaining that it was fair to bar Jones from relitigating the issue of intent because “[t]here [was] no question that the issue . . . was thoroughly litigated in a full adversary proceeding.” (Emphasis added.) Aetna Casualty & Surety Co. v. Jones, supra, 220 Conn. 307.

There was no prior litigation in the present case, let alone litigation that could be characterized as actual, full, fair or thorough. Instead, the declaratory judgment was obtained by default, without so much as either an appearance by counsel for Brotz or a hearing on the merits. This contrast marks a profound difference between Jones and the present case. In Jones, “Manfredi was provided with the full range of constitutional protections available to criminal defendants, including the right to a jury of twelve and the right to require the state to prove him guilty beyond a reasonable doubt. ” Id. None of these safeguards was present in the declaratory judgment action against Brotz.

Furthermore, we expressly reserved in Jones the possibility that “the case may arise where a lack of mutuality of parties would render the use of collateral estoppel patently unfair . . . .” Id., 303. This is such a case. Travelers successfully thwarted Willard’s attempt to intervene in the declaratory judgment proceeding against Brotz by arguing that Willard possessed “no existing, direct),] legal or equitable ‘interest’ in the subject matter of [that] action . . . .” For this reason, Willard did not possess even the opportunity to litigate the issue of Brotz’ residence. Travelers cannot now be heard to argue that Brotz and Willard are so interchangeable that we should bind the latter to a default judgment rendered against the former.

In Jones, we also expressed our concern that a litigant in the prior proceeding “might not be sufficiently motivated to challenge the allegations . . . .” Id., 306; Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 819, 695 A.2d 1010 (1997) (finding “little or no incentive in litigating” prior proceeding). We emphasized in Jones that “Manfredi was accused of murdering his wife. If convicted, he faced a potential sentence of life imprisonment.” Aetna Casualty & Surety Co. v. Jones, supra, 220 Conn. 306. Accordingly, we concluded that “his motivation to prove a lack of intent was compelling.” Id., 306-307. In the present case, in contrast, there is a substantial question as to whether Brotz understood the consequences of the declaratory judgment action. According to his deposition, Brotz was undergoing detoxification and withdrawal in a rehabilitation facility at the time of the prior proceeding. In addition, his father, who worked in the insurance industry, apparently counseled him not to worry about his attorney’s motion to withdraw from the declaratory judgment action. Even if Brotz did comprehend the import of the proceedings, his probable lack of assets provided him little incentive to vigorously contest the coverage of the policy.

We conclude, therefore, that Willard is not collaterally estopped by the declaratory judgment action brought by Travelers and, accordingly, he may relitigate the issue of Brotz’ coverage under his parents’ policy.

II

Travelers’ final claim is that, in the alternative, the trial court, Gray, J., incorrectly denied its motion for summary judgment on the basis of Travelers’ argument that, as a matter of law, Brotz was not an insured under the policy because he did not reside with his parents at the time he injured Willard. We are not persuaded.

In order to prevail, Travelers would have to demonstrate that, even when the evidence is viewed in the light most favorable to Willard, there was no genuine issue as to residence. Water & Way Properties v. Colt’s Mfg. Co., 230 Conn. 660, 664, 646 A.2d 143 (1994); Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 106, 639 A.2d 507 (1994). In his lengthy memorandum opposing Travelers’ motion for summary judgment, Willard marshaled the following evidence that, at the very least, suggests a genuine issue of material fact that Brotz resided in his parents’ household at the time Willard was injured: (1) in his answer to the complaint filed by Willard in the underlying personal injury action, Brotz admitted that he resided in his parents’ home and (2) in an affidavit, Brotz’ father stated that Brotz stored personal property there. Indeed, Travelers used Brotz’ parents’ home as his address when it notified him that he was being sued in the underlying personal injury action. Accordingly, we reject Travelers’ claim that, as a matter of law, Brotz was not a resident of his parents’ home at the time of the incident, notwithstanding the affidavit of Brotz’ parents that he was not living with them at the time of Willard’s injury. In other words, we conclude that there appears to be a genuine issue of material fact.

The judgment is reversed and the case is remanded to the trial court with direction to deny the defendant’s motion in limine and for further proceedings according to law.

In this opinion the other justices concurred.

        Willard v. Brotz, Superior Court, judicial district of New Haven, Docket No. CV 89-0283774-S (February 28, 1995).

        Travelers Ins. Co. v. Brotz, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 92-0511016-S (December 12, 1992).

       Willard withdrew his intentional assault and false imprisonment claims against Brotz. Accordingly, the default judgment was limited to the negligence claims.

       General Statutes § 38a-321 provides: “liability of insurer under liability policy. Each insurance company which issues a policy to any person, firm or corporation, insuring against loss or damage on account of the bodily injury or death by accident of any person, or damage to the property of any person, for which loss or damage such person, firm or corporation is legally responsible, shall, whenever a loss occurs under such policy, become absolutely liable, and the payment of such loss shall not depend upon the satisfaction by the assured of a final judgment against him for loss, damage or death occasioned by such casualty. No such contract of insurance shall be cancelled or annulled by any agreement between the insurance company and the assured after the assured has become responsible for such loss or damage, and any such cancellation or annulment shall be void. Upon the recovery of a final judgment against any person, firm or corporation by any person, including administrators or executors, for loss or damage on account of bodily injury or death or damage to property, if the defendant in such action was insured against such loss or damage at the time when the right of action arose and if such judgment is not satisfied within thirty days after the date when it was rendered, such judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment.”

       In the direct action, Willard also sought damages from Travelers for breach of contract, breach of the implied covenant of good faith and fair dealing, violation of the Connecticut Unfair Insurance Practices Act, violation of the Connecticut Unfair Trade Practices Act, and third party breach of contract.

       General Statutes § 53a-55 (a) (2) provides in pertinent part: “A person is guilty of manslaughter in the first degree when . . . with intent to cause

        the death of another person, he causes the death of such person . . . .” (Emphasis added.)

       Because we conclude that the court, DeMayo, J., should have rejected Travelers’ claim of collateral estoppel, we need not address whether a motion in limine was the appropriate procedural mechanism by which to raise the issue.

       Although we have recognized that it is possible to “envision some circumstances where it would be appropriate to give issue preclusive effect to a default judgment”; Jackson v. R. G. Whipple, Inc., supra, 225 Conn. 717; nothing about the present case suggests the propriety of applying the principles of collateral estoppel in order to bar Willard’s direct action against Travelers.

       We are not persuaded by Travelers’ claim that it would be “neither unfair nor inequitable” to estop Willard, because he should have either appealed the denial of his motion to intervene in the declaratory judgment action or moved to open the default judgment rendered against Brotz. As we have already emphasized, fairness is the “ ‘crowning consideration’ ’’ in collateral estoppel cases. Aetna Casualty & Surety Co. v. Jones, supra, 220 Conn. 306. We conclude that the unfairness of Travelers’ opposition to Willard’s motion to intervene — in particular, its argument that Willard possessed no interest in the subject matter of the declaratory judgment action — eclipses any possible inequity that might otherwise inhere in Willard’s failure to avail himself of either a prior appeal or a motion to open.
      Moreover, Travelers has made no attempt to establish that Willard (1) could have appealed from the denial of his motion to intervene; see Common Condominium Assns., Inc. v. Common Associates, 5 Conn. App. 288, 291, 497 A.2d 780 (1985) (“an unsuccessful applicant for intervention in the trial court does not have a final judgment from which to appeal unless he can make a colorable claim to intervention as a matter of right” [emphasis added]); or (2) would have prevailed on either this appeal or on a motion to open. Under the circumstances of this case, we fail to see how an unsuccessful appeal or motion to open could possibly trigger the doctrine of collateral estoppel.


author: PER CURIAM.

text:
    DEPARTMENT OF PUBLIC SAFETY, DIVISION OF STATE POLICE, ET AL. v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (SC 15934)
    Callahan, C. J., and Berdon, Palmer, McDonald and Peters, Js.
    Argued September 25
    officially released December 29, 1998

      Victor R. Perpetua, appellate attorney, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellant (named defendant).

      AnnE. Lynch, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellees (plaintiffs).
   Opinion

PER CURIAM.

These consolidated appeals arise from decisions rendered by the named defendant, the freedom of information commission, in connection with complaints that had been filed with it by the defendant Shirley Vigneri. The plaintiffs, the department of public safety, division of state police, and two of its employees, Gerald Gore and Michael Bochiccio, appealed from those decisions to the trial court pursuant to General Statutes §§ l-21i (d) and 4-183. The trial court rendered judgment sustaining the plaintiffs’ appeal in part.

Although we do not endorse all of the trial court’s reasoning, we believe that under the circumstances, the result reached is correct and we affirm the trial court’s judgment.

The judgment is affirmed.


author: PETERS, J.

text:
    ROBERT SMITH ET AL. v. MITSUBISHI MOTORS CREDIT OF AMERICA, INC., ET AL. MICHAEL PALMER v. MITSUBISHI MOTORS CREDIT OF AMERICA, INC., ET AL.
    (SC 15950)
    Borden, Noreott, Katz, Palmer and Peters, Js.

      Argued November 4
    officially released December 29, 1998

      Frederick L. Murolo, with whom was Jeffrey L. Fisher, for the appellant (named defendant).

      Geoffrey Naab, for the appellee (defendant Christopher J. Moore).
   Opinion

PETERS, J.

The principal issue in this case is the validity, as a matter of public policy, of an indemnity clause in a multiyear automobile lease. General Statutes § 14454a imposes on the owner of a leased automobile liability for injuries to third parties caused by the tortious conduct of the automobile’s lessee. The specific issue before us is whether that statute bars the enforcement of a clause in an automobile lease that requires the lessee to “indemnify and hold harmless” the owner that has fulfilled its statutory obligation to pay damages to injured third parties. We conclude that the statute does not invalidate the indemnity clause.

The named plaintiffs, Robert Smith and Michael Palmer, brought actions against the defendant Christopher J. Moore alleging that Moore’s negligence and recklessness in driving his leased automobile had caused them to suffer personal injuries. Relying on § 14454a, they also sought damages from the named defendant, Mitsubishi Motors Credit of America, Inc. (Mitsubishi), as the owner of the automobile leased to Moore. Palmer settled his claim against Mitsubishi for $287,500, and Smith, after a jury trial, obtained a judgment against Mitsubishi for $265,000. The merits of those underlying proceedings are not at issue in the present appeal.

In response to the named plaintiffs’ complaints, Mitsubishi filed answers and cross claims against Moore for indemnity. In its cross claims, Mitsubishi alleged that Moore was liable both because of an indemnity clause in the automobile lease and because of common-law principles of indemnity. Moore moved for summary judgment on both claims, and Mitsubishi moved for summary judgment on the claim regarding the indemnity clause in the lease. The trial court granted Moore’s motions and denied Mitsubishi’s motions and rendered judgments accordingly. Mitsubishi appealed from the judgments.

Mitsubishi, the appellant, has raised three issues challenging the rulings of the trial court. It claims that the court improperly held that: (1) the contractual indemnity clause was unenforceable as inconsistent with the policy of § 14-154a; (2) the contractual indemnity clause was unenforceable on the ground of unconscionability; and (3) common-law indemnity has no applicability in this case. Because we agree with Mitsubishi’s first two contentions, we need not decide its common-law claim.

I

PUBLIC POLICY

The automobile lease that Mitsubishi drafted and Moore signed was a two page document that contained numerous provisions for the protection of Mitsubishi. 4 The clause that the trial court found to be unenforceable provides in relevant part: “13. INDEMNITY, LIENS AND FINES. ... I agree to indemnify you (that is, I will pay you) and hold you harmless for losses, damages, claims, injuries and expenses (including attorneys’ fees) that result from this Lease, or from the manufacture, selection, delivery or possession of the Vehicle, or which relate to the condition, maintenance, use or operation of the Vehicle. My agreement to indemnify you and hold you harmless will survive termination of this Lease and repossession of the Vehicle.” The clause appears on the first page of the lease, where it is set off in a separate paragraph from clauses that, in similar type, disclaim warranties, impose liability for damage to the vehicle and specify default. Moore has not claimed ambiguity in the language of paragraph thirteen or any other clause in the lease. Compare Burkle v. Car & Truck Leasing Co., 1 Conn. App. 54, 57, 467 A.2d 1255 (1983) (evaluating clarity of indemnity clause where plaintiff had alleged ambiguity).

The trial court concluded that the indemnity clause violated the statutory policy of § 14-154a and thus was unenforceable on public policy grounds. In the court’s view, such a clause was an impermissible attempt to override the obligations that the statute imposed on Mitsubishi. We disagree.

For more than 100 years, § 14-154a and its statutory antecedents have imposed on owners of leased vehicles obligations that significantly supplement common-law principles of vicarious liability. We have construed the statute as having created a “statutory suretyship,” pursuant to which the owner of a leased automobile, driven by an authorized driver, is directly liable for injuries caused by the operation of the vehicle. See Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 284, 287-88, 472 A.2d 306 (1984); Levick v. Norton, 51 Conn. 461, 469 (1884).

The purpose of the statutory suretyship imposed by § 14-154a is to protect members of the public from injuries caused by the improper use of a leased automobile. Each of our decided cases concerning § 14-154a and its predecessors illustrates and enforces that statutory purpose, because each involved litigation between injured parties and the owner of the automobile. Pedevillano v. Bryon, 231 Conn. 265, 268-69, 648 A.2d 873 (1994); Gionfriddo v. Avis Rent A Car System, Inc., supra, 192 Conn. 282-83; Fisher v. Hodge, 162 Conn. 363, 369, 294 A.2d 577 (1972); Graham v. Wilkins, 145 Conn. 34, 37, 138 A.2d 705 (1958); Farm Bureau Mutual Automobile Ins. Co. v. Kohn Bros. Tobacco Co., 141 Conn. 539, 542-43, 107 A.2d 406 (1954); Connelly v. Deconinck, 113 Conn. 237, 240, 155 A. 231 (1931); Levy v. Daniels’ U-Drive Auto Renting Co., 108 Conn. 333, 336, 143 A. 163 (1928); Marshall v. Fenton, 107 Conn. 728, 731, 142 A. 403 (1928); Levick v. Norton, supra, 51 Conn. 468-69.

In the trial court, and in this appeal, Moore urges that § 14-154a serves a second purpose as well. That purpose, he argues, is to shield a negligent operator of a leased automobile from contractual liability to the automobile’s owner. For three reasons, we are not persuaded.

First, and most important, the text of the statute provides no support for Moore’s position. It addresses liability “for any damage to any person or property caused by the operation of such motor vehicle while so rented or leased, to the same extent as the operator would have been liable if he had also been the owner.” (Emphasis added.) General Statutes § 14-154a. Moore is not a person who has been “damaged” by his own negligent operation of the leased automobile. The persons who have been “damaged” are the named plaintiffs. Without exception, all our cases have construed the statutory language of “damage” as referring to the claims of the parties injured by the tortious operation of the automobile. In Farm Bureau Mutual Automobile Ins. Co. v. Kohn Bros. Tobacco Co., supra, 141 Conn. 543-44, we held, furthermore, that an owner of an automobile who must pay damages under the statute may recover from a driver who negligently caused the injury. Moore has cited no appellate case to the contrary, and we have found none. In our view, it would turn the statute on its head to construe the intended protection of injured members of the public to include protection of the tortfeasor who himself caused the injuries to occur.

Second, Moore’s position would make Mitsubishi an insurer of Moore’s tort liability. Moore does not, and cannot, point to any clause in the automobile lease that would bear such a construction. The unambiguous indemnity clause expressly states the opposite, making Moore liable to Mitsubishi for payments made by Mitsubishi as a result of Moore’s tortious conduct. Moore has articulated no reason why, as a matter of public policy, a tortfeasor should not be held accountable for the damages that he himself has caused.

Third, Mitsubishi’s duty as a statutory surety does not conflict, in any way, with its right to enforce the indemnity clause in its automobile lease. It has long been the law that, after payment, a surety is entitled to reimbursement from an underlying obligor who has notice of the suretyship. “From time immemorial courts of equity have recognized the surety’s right to reimbursement upon payment of his principal’s debt. . . . For a long time ... it has been generally recognized that the surety, upon payment, may recover of his principal in an action at law for money paid to the principal’s use. . . . [C]ourts of law today treat the right of reimbursement as founded upon a contract implied in fact . . . .” L. Simpson, Handbook on the Law of Suretyship (1950) § 48, pp. 225-26. For an updated statement of the same principle, see Restatement (Third), Suretyship and Guaranty § 22, pp. 93-94 (1996); see generally John-sons. Mortenson, 110 Conn. 221, 229, 147 A. 705 (1929). Moore has cited no contrary precedent in Connecticut law, and we have been unable to find any. The indemnity clause in the lease in this case, therefore, makes express what the common law has held to be implicit in the concept of suretyship.

For these reasons, we conclude, contrary to the trial court, that § 14-154a does not preclude, as a matter of public policy, the enforcement of an indemnity clause in an automobile lease in cases in which the lessee, as tortfeasor, has caused injuries for which the owner has paid damages. An automobile owner’s statutory liability to injured third persons does not shield such a lessee from liability.

II

UN CON SCIONABILITY

The contractual indemnity clause was contained in an automobile lease that was a form contract. Moore claims, and the trial court held, that the clause was unenforceable because it was unconscionable. The classic definition of an unconscionable contract is one “which no man in his senses, not under delusion, would make, on the one hand, and which no fair and honest man would accept, on the other.” (Internal quotation marks omitted.) Neal v. Lacob, 31 Ill. App. 3d 137, 142, 334 N.E.2d 435 (1975), quoting Hume v. United States, 132 U.S. 406, 410, 10 S. Ct. 134, 33 L. Ed. 393 (1889). In practice, we have come to divide this definition into two aspects of unconscionability, one procedural and the other substantive, the first intended to prevent unfair surprise and the other intended to prevent oppression. See Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 88-89, 612 A.2d 1130 (1992). We are not persuaded that Moore presented sufficient evidence on either aspect to sustain the trial court’s judgments.

A

Procedural Unconscionability

The trial court held no evidentiary hearing on the issue of procedural unconscionability. It made no express findings of fact relating thereto. We may infer that it relied exclusively on the affidavit filed by Moore with respect to Mitsubishi’s motion for summary judgment on its cross claim, and on the copy of the lease that was attached as an exhibit. Mitsubishi filed no counteraffidavit.

It is an understatement to characterize Moore’s affidavit as sparse. The only paragraph of relevance to his claim is paragraph three. That paragraph provides only: “No one called my attention to section 13 of the Agreement, entitled, ‘Indemnity, Liens and Fines.’ My attention was mainly directed to the provisions concerning insurance, mileage, payment and signatures.”

As Mitsubishi aptly observes, that statement is notable for what it does not assert. Moore does not state that he: (1) was a consumer leasing the automobile for consumer purposes; (2) had no opportunity to read the two page automobile lease as a whole; (3) had difficulty, because of the size of the type and the location of the indemnity clause in the lease, in reading the text of the clauses in the lease that had not specifically been called to his attention; (4) had failed to understand the indemnity clause because of its use of obscure legalese; (5) had been unable to read or understand the indemnity clause in the lease because he was illiterate or blind or otherwise disabled from having access thereto; (6) had no opportunity to bargain over the clauses in the lease because Mitsubishi’s competitors used similar form contracts; or (7) had no prior experience with standard terms in automobile leases.

To establish a basis for its finding of procedural unconscionability, the trial court, therefore, must have concluded, without any evidence of overreaching, that Mitsubishi’s use of a form contract imposed on it a sua sponte duty to direct the attention of any potential individual lessee to important clauses contained in the automobile lease. To state so unconditional a proposition is to refute it. We have never held that principles of unconscionability supersede, in toto, the duty of a contracting party to read the terms of an agreement or else be deemed to have notice of the terms. See, e.g., G & R Tire Distributors, Inc. v. Allstate Ins. Co., 177 Conn. 58, 61-62, 411 A.2d 31 (1979); Ursini v. Goldman, 118 Conn. 554, 562, 173 A. 789 (1934); see also Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593-95, 111 S. Ct. 1522, 113 L. Ed. 2d 622 (1991); Northwestern National Ins. Co. v. Donovan, 916 F.2d 372, 377-78 (7th Cir. 1990).

The closest we have come to addressing this issue directly is in Cheshire Mortgage Service, Inc. v. Montes, supra, 223 Conn. 88-91. In that case, having identified the purpose of the unconscionability doctrine as the prevention of unfair surprise; id., 88; we concluded that procedural unconscionability had not been established. Id., 91. Among the factors that we considered significant was the fact that the defendants who sought to invoke the doctrine had been advised by the plaintiff, ab initio, about the contents of the disputed clause in the mortgage that the defendants had signed. Id., 90.

Our decision in Cheshire Mortgage Service, Inc., afforded us no opportunity to consider whether, in the absence of such advice, enforcement of the mortgage would have been procedurally unconscionable. In light of the principles expressed throughout our case law, we hold today that procedural unconscionability cannot be predicated solely on the failure by a commercial party proffering a form contract to an individual party to direct the individual’s attention to specific terms of a contractual agreement. See generally 1 E. Farnsworth, Contracts (2d Ed. 1998) §§ 4.26 and 4.28.

We conclude, therefore, that the trial court improperly determined that Moore had proved procedural unconscionability in Mitsubishi’s dealings with him. Neither the lease itself, nor Moore’s affidavit incorporating the lease factually supported the trial court’s ruling in favor of Moore. The court therefore had no basis for its expansive statement that the indemnity clause in this case was unconscionable because the underlying transaction involved “a corporate entity and an individual.”

B

Substantive Unconscionability

Even in the absence of procedural unconscionability, Moore might avoid liability under the indemnity clause in the lease if he could establish that the clause was substantively unconscionable. The opinion of the trial court might be construed to have come to such a conclusion. 11 If it did so, we disagree with it.

The principal reason why Moore’s claim of substantive unconscionability cannot be sustained is that it is no more than a reformulation of his public policy argument about the relationship between the indemnity clause and § 14-154a. That argument we have already rejected in part I of this opinion.

In addition, however, Moore argues that the indemnity clause is unfair and oppressive because other terms in the lease agreement provided Mitsubishi with sufficient protection against damages claims. He points especially to the automobile insurance clause, paragraph twenty-one, which required him to obtain and maintain, among other things, liability coverage of $100,000 per person and $300,000 per incident. In his view, read in the context of the lease as a whole, the indemnity clause was unreasonably favorable to Mitsubishi.

We find Moore’s position untenable. First, the trial court never ruled expressly on that argument, and Moore’s brief does not indicate in what manner, if any, it was presented to that court. See Practice Book § 60-5. Second, the argument depends on an interpretation of the interconnection among various provisions in the lease that is difficult to square with Moore’s failure ever to allege that the indemnity clause was ambiguous. Finally, the argument presumes that a contract clause is oppressive if it allocates to a tortfeasor all of the uninsured costs attributable to the tortfeasor’s misconduct. We know of no authority for this proposition.

Ill

CONCLUSION

In conclusion, on the record before it, the trial court improperly granted Moore’s motion for summary judgment and denied Mitsubishi’s motion for summary judgment. As a matter of law, an indemnity clause in an automobile lease does not violate public policy in general or § 14-154a in particular. As a matter of fact, the indemnity clause in this lease was enforceable because it was neither procedurally nor substantively unconscionable.

The judgments in favor of Moore are reversed and the case is remanded with direction to render judgments for the named defendant on its cross claims against Moore.

In this opinion the other justices concurred.

       General Statutes § 14-154a provides: “Any person renting or leasing to another any motor vehicle owned by him shall be liable for any damage to any person or property caused by the operation of such motor vehicle while so rented or leased, to the same extent as the operator would have been liable if he had also been the owner.”

       Moore was the operator of a leased motor vehicle, and Mitsubishi was the vehicle’s owner under the definitions of “operator” and “owner” provided by General Statutes § 14-1.

       Although Mitsubishi properly filed its appeal in the Appellate Court, we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

       For example, in paragraph twenty-four, the lease limited the mileage that was allowable for the lease term; in paragraph seven, it required the lessee to pay for vehicle maintenance; and, in paragraph twenty-one, it specified the amount of motor vehicle liability insurance that the lessee was required to carry.

       The named plaintiffs in this case relied on § 14-154a as the basis for their claim for recovery of damages from Mitsubishi.

       Although Moore characterizes the form contract as a contract of adhesion, the record contains nothing to substantiate that characterization. The trial court made no such finding. A form contract between an individual and a corporate supplier of goods or services is not invariably a contract of adhesion.

       The affidavit, in its entirety, provides:
      “AFFIDAVIT OF CHRISTOPHER J. MOORE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ON MITSUBISHI’S CROSS-CLAIM “Christopher J. Moore of New Haven, Connecticut, being first duly sworn, deposes and says:
      “1. I am a defendant in these cases. I am over the age of majority and understand the obligation of an oath. I make this affidavit of my personal knowledge.
      “2. On or about January 4,19941 signed aVehicle Lease at Girard Mitsubishi in Groton. A copy of the lease agreement is attached to this Affidavit as Exhibit A.
      “3. No one called my attention to section 13 of the Agreement, entitled, ‘Indemnity, Liens and Fines.’ My attention was mainly directed to the provisions concerning insurance, mileage, payments and signatures.
      “4.1 obtained and maintained throughout the life of the lease Bankers & Shippers Insurance Co. policy no. LCT-0322312-01, with all the coverages required by section 21 of the Lease, including specifically bodily iqjury liability coverage with limits of $100,000 per person and $300,000 per occurrence, which covers both me and Mitsubishi for the accident of January 24, 1995.”
      The affidavit was dated, signed and sworn to before Moore’s counsel.

       That omission is significant because, without any factual basis, in his brief Moore consistently describes himself as a consumer. The trial court made no such finding. Nothing in the record precludes the possibility that Moore was a small business man using the leased automobile for business purposes.

       This list is illustrative only. We do not mean to suggest that it contains an exhaustive list of the factual considerations that a court may take into account to determine whether a party has proved procedural unconscionability in a contract that the party has signed.

       The reverse of this proposition is, however, debatable. Professor E. Allan Farnsworth has written: “Courts have resisted applying the doctrine [of unconscionability] where there is only procedural unconscionability without substantive unfairness.” 1 E. Farnsworth, supra, § 4.28, p. 560. We need not decide that issue in the present case.

       In its opinion, the trial court stated: “This court determines as a matter of law where there is a transaction involving a corporate entity and an individual, as there is in this case, any indemnification clause based on the facts in this case would be unconscionable.”

       Paragraph twenty-one provides: “VEHICLE INSURANCE. I understand that I must pay for and keep in force the following minimum insurance coverages during the Lease Term and until the Vehicle is returned to you:
      “a. Public liability for bodily injury or death to any one person for $100,000 and for any one occurrence for $300,000;
      “b. Property damage liability for $50,000;
      “c. Comprehensive, including fire and theft, for the Vehicle’s actual value (payable in cash — not by a replacement vehicle) with a maximum deductible of $500 (unless another amount is shown here $ n.a.); and
      “d. Collision for the Vehicle’s actual value (payable in cash — not by a replacement vehicle) with a maximum deductible of $500 (unless another amount is shown here $ n.a.).
      “The policy must provide you with primary coverage as an additional insured on coverages (a) and (b) and as the loss payee on coverages (c) and (d). The policy must also provide you with at least thirty (30) days’ advance notice of any cancellation of coverage and with coverage for the minimum limits required by any no-fault and uninsured motorist law. If I fail to maintain the insurance required above, you may, but do not have to, obtain insurance for me at my expense. I assign to you any money paid under the insurance to which you are entitled, no matter who obtains it. I appoint you to be my agent and attomey-in-fact to collect any money paid under the insurance, to endorse checks or drafts related to payment, and to settle or release any insurance claim.
      “The insurance coverage must be written by a company that is reasonably satisfactory to you. Coverage must begin before the Vehicle is delivered to me, and it must continue until after I return the Vehicle to you. Both before the Vehicle is delivered to me and at any later time, I must give you whatever written proof that you request that I have obtained the insurance required under this Lease. I must cooperate with you and the insurer in the event of any loss or damage to the Vehicle. I must report any accident to you within 48 hours and provide you with the time, place and circumstances of the accident, as well as any information concerning injuries to any person or other property. If I am sued or threatened with suit, I must immediately send you the documents I receive (or the operator of the Vehicle receives) concerning that claim.”

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