author: Callahan, J. Berdon, J.,

text:
    George M. Capozzi v. Liberty Mutual Fire Insurance Company
    (14844)
    Callahan, Borden, Berdon, Katz and Palmer, Js.
    Argued March 31—
    decision released May 24, 1994

      William I. Garfinkel, with whom was Brian R. Shagan, for the appellant (plaintiff).

      James E. Kernan, for the appellee (defendant).
   Callahan, J.

The plaintiff, George M. Capozzi, appealed to the Appellate Court from a judgment of the trial court confirming an arbitration award in favor of the defendant, Liberty Mutual Fire Insurance Company. The Appellate Court affirmed the judgment of the trial court, reasoning that the trial court had correctly determined that the plaintiff had waived his claim that the arbitrator’s decision was untimely, and that there was substantial evidence that the plaintiff had not been operating a replacement vehicle when he was injured in an accident with an uninsured motorist on June 10, 1988. Capozzi v. Liberty Mutual Fire Ins. Co., 32 Conn. App. 250, 629 A.2d 424 (1993).

On June 10,1988, the date of the accident, the plaintiff was operating a 1986 Suzuki motorcycle that he had purchased on May 2, 1988. He had taken possession of the Suzuki on June 4,1988. At the time of the accident, the plaintiff had two separate policies of insurance with the defendant. One policy insured a 1980 Honda automobile and the other policy insured a 1985 Honda motorcycle. Both policies provided for uninsured motorists coverage, but specifically excluded such coverage for injuries sustained while occupying an uninsured vehicle owned by the injured party.

The plaintiff claimed, however, that he had purchased the Suzuki motorcycle as a replacement vehicle for his Honda motorcycle and that the policy covering the Honda also provided coverage for the Suzuki. The provision in the policy relied upon by the plaintiff provides in pertinent part: “If the vehicle you acquire replaces one of the same type shown in the Schedule or in the Declarations, it will have the same coverage as the vehicle it replaced. . . .” The defendant disputed the plaintiffs claim that the Suzuki motorcycle was a replacement for the Honda motorcycle.

A majority of the arbitration panel found that the Suzuki was not a replacement vehicle for the Honda. The majority determined, therefore, that the plaintiff had been injured while occupying an uninsured vehicle. Consequently, they concluded that the exclusion in his policies applied and that the policies did not provide the plaintiff uninsured motorist coverage for his accident.

The trial court concluded that there was substantial evidence to support the decision of the arbitrators and confirmed the arbitration award. The Appellate Court affirmed the judgment of the trial court. We granted certification limited to the following question: “Whether the Appellate Court correctly held that there was substantial evidence to support the arbitrators’ conclusion that when the plaintiff was injured he was not operating a ‘replacement vehicle’ and that he was therefore not covered by the uninsured motorist provisions of the defendant.” Capozzi v. Liberty Mutual Fire Ins. Co., 227 Conn. 925, 632 A.2d 702 (1993).

Whether a factual finding of an arbitration panel is supported by substantial evidence is ultimately a question of law subject to de novo review by this court. Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 667, 591 A.2d 101 (1991); Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 593, 590 A.2d 447 (1991). Substantial evidence will be found to exist if the record contains a substantial basis of fact from which the fact in issue can be reasonably inferred. Adriani v. Commission on Human Rights & Opportunities, 220 Conn. 307, 315, 596 A.2d 426 (1991); Con necticut Light & Power Co. v. Dept. of Public Utility Control, 216 Conn. 627, 639, 583 A.2d 906 (1990). Our review of the record persuades us that the Appellate Court, even under the liberal approach that it adopted, properly concluded that there was substantial evidence to support the arbitrators’ conclusion that the plaintiff was not operating a replacement vehicle at the time of his accident and, therefore, was not covered by the uninsured motorist provisions of his insurance policies.

The only testimonial evidence before the arbitration panel was the deposition of the plaintiff. In his deposition, the plaintiff stated that before he had purchased the Suzuki on May 2,1988, it had been in an accident, but that it had been repaired and that he had obtained “the bike from Adams’ Suzuki completed on June 4, 1988,” and had driven it home. (Emphasis added.) Despite the apparent restoration of the Suzuki, the plaintiff testified that he intended to combine parts of the Honda with the Suzuki to make one motorcycle to replace the Honda. He also testified that, as of June 10, 1988, the Honda had been registered and insured.

Further, in response to a question by the defendant’s attorney as to whether he had driven the Honda “throughout May and June, 1988,” (emphasis added), the plaintiff replied that he had driven the Honda “[v]ery sporadically. It wasn’t running barely running, I should say.” Later, in answer to a question by his own attorney as to whether the Honda was running on June 10,1988, the plaintiff stated only that, “It would start.” Subsequently, however, in response to another question by the defendant’s counsel inquiring whether the Honda was running on June 10,1988, the plaintiff answered: “It was running, yes.” The plaintiff also testified that he had stopped riding the Honda only shortly after the accident and that he had kept the Honda and that it had been registered until he had sold it to a friend in the summer of 1989. Moreover, he stated that he had not notified the defendant of the June 10,1988 accident or of his intention to replace the Honda with the Suzuki until September 8,1988, and that he had done so then only on the advice of his attorney.

The plaintiff did state that it was his intention to replace the Honda with the Suzuki. The arbitrators, however, were not bound to accept his testimony in this regard even if uncontradicted. Bieluch v. Bieluch, 199 Conn. 550, 555, 509 A.2d 8 (1986); Acheson v. White, 195 Conn. 211, 217, 487 A.2d 197 (1985); Howell v. Administrator, 174 Conn. 529, 532, 391 A.2d 165 (1978). They were entitled instead to infer from the plaintiff’s actions and his testimony, that the Suzuki motorcycle had been purchased by the plaintiff not as a replacement vehicle but as an additional vehicle. See State v. Williams, 202 Conn. 349, 357, 521 A.2d 150 (1987) (whether an inference should be drawn is properly a question for the finder of fact); State v. Vincent, 194 Conn. 198, 208, 479 A.2d 237 (1984) (fact finder under no obligation to believe defendant, function to decide credibility, determine facts and draw reasonable and logical inferences).

The judgment of the Appellate Court is affirmed.

In this opinion Borden, Katz and Palmer, Js., concurred.

Berdon, J.,

dissenting. I agree with the well reasoned dissenting opinion of Judge Schaller of the Appellate Court. Capozzi v. Liberty Mutual Fire Ins. Co., 32 Conn. App. 250, 261, 629 A.2d 424 (1993) (Schaller, J., dissenting). I therefore would reverse the judgment of the Appellate Court.

While I have no quarrel with the standard of review employed by the majority, I disagree with its application. First, I agree with the Appellate Court that the plaintiff’s intent must be determined as of June 4,1988, the date he took possession of the Suzuki, rather than May 2,1988, the date he purchased it. While the Appellate Court did not cite any authority for this proposition, it only makes sense that a person cannot replace a vehicle with something he does not yet possess.

Second, I disagree with both the majority and the Appellate Court that May 2 was “merely the starting point” for the arbitrators. The arbitrators specifically concluded that “the issue of the Suzuki replacing the Honda should be determined as of May 2, 1988,” and that “it was not the claimant’s intent, as of May 2, 1988,” that the Suzuki replace the Honda. It is clear from this language from the arbitrators’ decision that May 2 was not merely a starting point, but rather was the critical date for determining intent.

Third, I disagree with the majority’s implicit conclusion in footnote 4 that even if June 4 is used as the date for determining the plaintiff’s intent, there was substantial evidence to support the arbitrators’ decision. As Judge Schaller points out in his dissent, there is an “absence of evidence that the [vehicle that was replaced by the Suzuki] was operated after June 4, the date when the plaintiff took possession of the Suzuki, and before June 10, the date on which the accident occurred.” (Emphasis in original.) Id., 265. The fact that the plaintiff operated the Honda between May 2 and June 4, while the Suzuki was being repaired, is wholly consistent with his claim that he intended the Suzuki to replace the Honda. Indeed, the evidence cited by the majority that the plaintiff (1) drove the Suzuki on June 4, and (2) intended to use parts of the Honda in the Suzuki, supports the plaintiff’s claim.

Finally, although the majority does not expressly decide which approach should be used to define “replacement vehicle,” I agree with Judge Schaller that this state should adopt the so-called “alternative approach.” The determinative factor in this approach is whether the insured intended that the newly purchased vehicle replace an insured vehicle. In contrast, the so-called “formalistic approach” requires that the insured vehicle be either rendered inoperable or disposed of at the time the new vehicle is purchased.

Accordingly, I respectfully dissent.

       In the interim between May 2 and June 4, 1988, the motorcycle was at Adams’ Suzuki in Watertown being repaired.

       The clause in question provides in pertinent part: “We do not provide uninsured motorists coverage for bodily injury sustained by any person: 1. While occupying, or when struck by, any motor vehicle or motorcycle owned by that person or owned by you for which the security required by the Connecticut Financial Responsibility Act is not in effect. ...”

       The Appellate Court adopted the “alternative” approach to determine whether the newly acquired Suzuki was a replacement for the Honda. See Capozzi v. Liberty Mutual Fire Ins. Co., supra, 32 Conn. App. 257-58. The “alternative” approach requires consideration of the totality of the circumstances, including the intent of the insured, to arrive at a determination as to whether a newly acquired vehicle is a replacement vehicle. Because it is not a part of the certified question and was not briefed, we do not reach the issue of whether we would adopt the “alternative” approach to defining a replacement vehicle or the more rigid “formalistic’ ’ approach, which requires that the vehicle to be replaced have been disposed of or be completely inoperable. Id., 257.

       The Appellate Court concluded that the relevant date for determining whether the plaintiff intended to replace the Honda with the Suzuki was June 4,1988, the date the plaintiff took possession of the Suzuki. The arbitrators had found that May 2,1988, the date of purchase, was the determinative date. The Appellate Court gave no reason for its conclusion other than stating that, “[u]nder the facts of this case,” June 4,1988, not May 2,1988, was the date on which the plaintiffs intention must be assessed. Irrespective of whether May 2, 1988, or June 4, 1988, is considered the date on which to ascertain the plaintiffs intent, we agree with the Appellate Court that May 2, 1988, was “merely a starting point”, for the arbitrators and that their decision can fairly be interpreted as their having concluded, from the evidence, that the plaintiff never had the intention during the entire time period from May 2,1988, through June 10,1988, the date of the accident, to replace the Honda with the Suzuki as the insured vehicle. Capozzi v. Liberty Mutual Fire Ins. Co., supra, 32 Conn. App. 258-60.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Connecticut Resources Recovery Authority v. Refuse Gardens, Inc., et al.
    (14886)
    Peters, C. J., Callahan, Berdon, Katz and Palmer, Js.
    Argued May 4—
    decision released May 31, 1994

      George A. Dagon, Jr., with whom, on the brief, was Richard R. Steinmetz, for the appellant (plaintiff).

      Dan E. LaBelle for the appellees (defendants).

      Richard Blumenthal, attorney general, and Robert B. Teitelman, assistant attorney general, filed a brief for the commissioner of environmental protection as amicus curiae.
   Per Curiam.

The sole issue in this environmental case is whether General Statutes § 22a-452 (a) imposes strict liability upon a prior landowner for a subsequent landowner’s costs of cleaning up a contaminated landfill. The plaintiff, the Connecticut Resources Recovery Authority, brought an action to recover for the costs of cleanup of real property previously owned by the defendants, Refuse Gardens, Inc., and its officers, directors and shareholders. The plaintiff filed an application for a prejudgment remedy pursuant to General Statutes § 52-278a et seq. on count four of its complaint, in which it sought reimbursement from the defendants under § 22a-452 (a). The trial court, after a hearing, denied the plaintiff’s application and the plaintiff appealed to the Appellate Court pursuant to General Statutes § 52-278l. We transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the ruling of the trial court.

The issue that divides the parties is the meaning of the phrase in § 22a-452 (a) that permits a private person, firm, corporation or municipality to seek reimbursement from “any person, firm or corporation” for the costs of environmental restoration for pollution resulting “from the negligence or other actions of such person, firm or corporation.” (Emphasis added.) By contrast, General Statutes § 22a-451 (a) permits the commissioner of environmental protection to recover the costs of environmental restoration from “[a]ny person, firm or corporation which directly or indirectly causes pollution and contamination of any land or waters of the state . . . .” (Emphasis added.) The latter section permits the recovery of enhanced damages if a defendant’s conduct was negligent or wilful. Both sections derive from No. 765 of the 1969 Public Acts. The trial court concluded that the legislature intended § 22a-452 (a) to require a showing of culpability and not merely causation. Because the plaintiff had not alleged such culpability on the part of the defendants, the court denied the plaintiffs application for a prejudgment remedy. Connecticut Resources Recovery Authority v. Refuse Gardens, Inc., 43 Conn. Sup. 83, 642 A.2d 762 (1994).

The plaintiff urges us to overturn the trial court’s decision and to direct the granting of a prejudgment remedy. Our examination of the record on appeal, and the briefs and arguments of the parties, persuades us, however, that the decision of the trial court should be affirmed. The trial court carefully examined the language and the history of § 22a-452 (a) in light of the plaintiff’s pleadings in this case. The trial court’s thoughtful and comprehensive memorandum of decision fully states and meets the arguments raised by the parties on this appeal. Accordingly, we adopt the trial court’s well reasoned decision as a correct statement of the facts and the applicable law on the contested issue. It would serve no useful purpose for us to repeat the discussion therein contained. See Daw’s Critical Care Registry, Inc. v. Dept. of Labor, 225 Conn. 99, 101-102, 622 A.2d 518 (1993); Loeb v. Al-Mor Corp., 224 Conn. 6, 7, 615 A.2d 149 (1992).

The denial of the plaintiffs application for a prejudgment remedy on count four of its complaint is affirmed.

       General Statutes § 22a-452 provides in relevant part: “REIMBURSEMENT FOR CONTAINMENT OR REMOVAL COSTS. LIABILITY FOR CERTAIN ACTS OR OMISSIONS, (a) Any person, firm, corporation or municipality which contains or removes or otherwise mitigates the effects of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes resulting from any discharge, spillage, uncontrolled loss, seepage or filtration of such substance or material or waste shall be entitled to reimbursement from any person, firm or corporation for the reasonable costs expended for such containment, removal, or mitigation, if such oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes pollution or contamination or other emergency resulted from the negligence or other actions of such person, firm or corporation. When such pollution or contamination or emergency results from the joint negligence or other aetions of two or more persons, firms or corporations, each shall be liable to the others for a pro rata share of the costs of containing, and removing or otherwise mitigating the effects of the same and for all damage caused thereby.”

       General Statutes § 52-278d provides in relevant part: “hearing on PRE JUDGMENT REMEDY APPLICATION. DETERMINATION BY THE COURT. SERVICE OF PROCESS, (a) The defendant shall have the right to appear and be heard at the hearing. The hearing shall be limited to a determination of whether or not there is probable cause to sustain the validity of the plaintiffs claim. If the court, upon consideration of the facts before it, finds that the plaintiff has shown probable cause to sustain the validity of his claim, then the prejudgment remedy applied for shall be granted as requested or as modified by the court unless the prejudgment remedy or application for such prejudgment remedy was dismissed or withdrawn pursuant to the provisions of section 52-278j.” This statute was amended effective January 1, 1994, by Public Acts 1993, No. 93-431, §§ 2, 10.

       General Statutes § 52-278Í provides in relevant part: “appeal, (a) An order (1) granting or denying a prejudgment remedy following a hearing under section 52-278d or (2) granting or denying a motion to dissolve or modify a prejudgment remedy under section 52-278e or (3) granting or denying a motion to preserve an existing prejudgment remedy under section 52-278g shall be deemed a final judgment for purposes of appeal.”

       General Statutes § 22a-451 provides in relevant part: “liability for POLLUTION, CONTAMINATION OR EMERGENCY. EMERGENCY SPILL RESPONSE fund, (a) Any person, firm or corporation which directly or indirectly causes pollution and contamination of any land or waters of the state or causes an emergency through the discharge, spillage, uncontrolled loss, seepage or filtration of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes or which owns any hazardous wastes deemed by the commissioner to be a potential threat to human health or the environment and removed by the commissioner shall be liable for all costs and expenses incurred in investigating, containing, removing, monitoring or mitigating such pollution and contamination, emergency or hazardous waste, and legal expenses and court costs incurred in such recovery, provided, if such pollution or contamination or emergency was negligently caused, such person, firm or corporation may, at the discretion of the court, be liable for damages equal to one and one-half times the cost and expenses incurred and provided further if such pollution or contamination or emergency was wilfully caused, such person, firm or corporation may, at the discretion of the court, be liable for damages equal to two times the cost and expenses incurred. The costs and expenses of investigating, containing, removing, monitoring or mitigating such pollution, contamination, emergency or hazardous waste shall include, but not be limited to, the administrative cost of such action calculated at ten per cent of the actual cost plus the interest on the actual cost at a rate of ten per cent per year from the date such costs and expenses were paid. The costs of recovering any legal expenses and court costs shall be calculated at five per cent of the actual costs, plus interest at a rate of ten per cent per year from the date such costs were paid. Upon request of the commissioner, the attorney general shall bring a civil action to recover all such costs and expenses.”

       The amicus urges us to construe General Statutes § 22a-452 (a) to sustain the plaintiff’s cause of action in light of the desirability of encouraging private parties to clean up environmental problems on their own. The amicus notes that private initiatives are especially important to assist the commissioner of environmental protection in times of strained personnel and financial resources. This argument might well persuade the legislature to broaden the scope of § 22a-452 (a), but it does not enable us to rewrite the text of the statute. Without clear statutory guidance, we cannot presume that the legislature intended to impose strict liability on former landowners. Even the imposition of liability for negligence on former landowners is a substantial deviation from the common law rule of caveat emptor. The common law rule continues to have vitality even though it has given way to liability for negligence in special cases such as those involving the defective construction of buildings or their appurtenances by builder-vendors of real property. Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982); Scribner v. O’Brien, Inc., 169 Conn. 389, 400, 363 A.2d 160 (1975); see generally 2 Restatement (Second), Torts §§ 352 and 372 (1965); W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 64, pp. 446-48.


author: Palmer, J.

text:
    John F. Bigley, Executor (Estate of Norma C. White) v. Pacific Standard Life Insurance Company
    (14671)
    Borden, Berdon, Norcott, Katz and Palmer, Js.
    Argued December 3, 1993—
    decision released May 31, 1994

      Peter C. Harvey, for the appellant-appellee (plaintiff).

      Alice Ann Carey, for the appellee-appellant (defendant).
   Palmer, J.

This case requires us to decide whether the beneficiary of a life insurance annuity policy or the insurance company that issued the policy bears the loss resulting from the insurer’s payment of the policy proceeds to a person fraudulently substituted as the beneficiary. The trial court held that the defendant, Pacific Standard Life Insurance Company, was not liable to the plaintiff, John F. Bigley, executor of the estate of Norma C. White and the beneficiary of a life insurance annuity policy purchased by White from the defendant, because the defendant had paid the policy proceeds in good faith to a fraudulently substituted beneficiary. We reverse the judgment of the trial court.

The relevant facts are undisputed. In May, 1987, White purchased a life insurance annuity policy from the defendant and named the plaintiff as beneficiary in his capacity as trustee of her estate. Michael Jurinske, an insurance agent and White’s grandson, had sold the policy to White and had witnessed White’s execution of the policy application. On January 15, 1988, White died in an automobile accident. At the time of her death, the value of the policy was $225,343.18.

On January 21,1988, the defendant received a written request to change the beneficiary of White’s policy. The change of beneficiary form, dated January 8,1988, bore the purported signature of White and sought a change in the beneficiary of the policy from the plaintiff to Jurinske, as trustee for two of White’s great-grandchildren. The form also bore Jurinske’s signature as a witness to White’s purported execution of the form. The defendant approved the request, and on January 25,1988, mailed a notification letter to White’s home acknowledging the change of beneficiary. On March 22,1988, the defendant, having received a copy of White’s death certificate from Jurinske and no other claim to the proceeds of the policy, forwarded a check to Jurinske in the amount of the policy.

The plaintiff brought this action, alleging that the defendant had negligently approved the forged change of beneficiary form, and that the defendant had breached the terms of the policy by failing to pay the proceeds to the plaintiff. The defendant denied the allegations and asserted four special defenses, namely that: (1) the action should be stayed in light of an order of the Superior Court for the state of California enjoining all actions against the defendant; (2) the defendant had been discharged from liability by virtue of its payment of the policy proceeds in accordance with the terms of the change of beneficiary form; (3) General Statutes § 38a-453 (c) bars the claims of the plaintiff; and (4) the plaintiffs claims are barred by his failure to question or challenge the fraudulent change of beneficiary request in a timely manner.

A trial to the court ensued. The court found that Jurinske had fraudulently induced the defendant to pay the policy proceeds to him, rather than to the plaintiff, by forging White’s signature on the change of beneficiary form. The court concluded that the defendant’s good faith payment of the policy proceeds to Jurinske without knowledge of the fraud or notice of any competing claim relieved the defendant of its obligation to the plaintiff under the policy. We disagree.

An insurer who is contractually obligated to remit the proceeds of a life insurance policy upon the death of the insured is discharged from liability under the policy if, in good faith, it pays the proceeds to the beneficiary designated by the policyholder. Weed v. Equitable Life Assurance Society of the United States, 288 F.2d 463 (5th Cir.), cert. denied, 368 U.S. 821, 82 S. Ct. 40, 7 L. Ed. 2d 27 (1961); Harper v. Prudential Ins. Co. of America, 233 Kan. 358, 662 P.2d 1264 (1983); Avondale v. Sovereign Camp, Woodmen of the World, 134 Neb. 717, 279 N.W. 355 (1938); 4 G. Couch, Insurance (2d Ed. Rev. 1984) § 27:176; see Iverson v. Scholl, Inc., 136 Ill. App. 3d 962, 483 N.E.2d 893 (1985); Bickers v. Shenandoah Valley National Bank, 197 Va. 145, 88 S.E.2d 889 (1955), reh. denied, 197 Va. 732, 90 S.E.2d 865 (1956). This general rule relieves the insurer from liability under the policy in circumstances where, for example, the insurer had paid the beneficiary designated by the policyholder without knowledge that: (1) the policyholder was incompetent or insane at the time the beneficiary was designated; Weed v. Equitable Life Assurance Society of the United States, supra, 463; New York Life Ins. Co. v. Federal National Bank, 151 F.2d 537 (10th Cir. 1945); State Life Ins. Co. v. Coffrini, 285 F. 560 (3d Cir. 1922); Metropolitan Life Ins. Co. v. Bramlett, 224 Ala. 473, 140 So. 752 (1932); (2) the beneficiary was criminally responsible for the death of the policyholder; In re Estate of Thompson, 99 Ill. App. 3d 303, 426 N.E.2d 1 (1981); Harper v. Prudential Ins. Co. of America, supra, 358; or (3) the beneficiary had exerted undue influence over the policyholder in order to secure the designation as beneficiary. Bosworth v. Wolfe, 146 Wash. 615, 264 P. 413 (1928). Unless the insurer has reason to believe that the beneficiary named by the policyholder is not entitled to receive the policy proceeds, payment to the policyholder’s designated beneficiary discharges the insurer from liability under the policy.

Payment of the policy proceeds to a person fraudulently substituted as beneficiary, however, does not relieve the insurer of its contractual obligation to pay the beneficiary actually designated by the policyholder. Western & Southern Life Ins. Co. v. Whiston, 30 Ill. App. 3d 844, 333 N.E.2d 72 (1975); Stavros v. Western & Southern Life Ins. Co., 486 S.W.2d 712 (Ky. App. 1972); Union Labor Life Ins. Co. v. Parmely, 270 Md. 146, 311 A.2d 24 (1973); G. Couch, supra, § 27:177; cf. McNabb v. Kentucky Central Life Ins. Co., 631 S.W.2d 253 (Tex. App. 1982). The life insurance annuity policy purchased by White expressly required the defendant to pay the policy proceeds to the beneficiary designated by White. Payment of the proceeds to Jurinske did not discharge the defendant from its contractual obligation to pay the plaintiff because Jurinske was not the beneficiary named by the policyholder.

This conclusion is consistent with the general rule that a change of beneficiary of an insurance policy can be effected only by following the procedure prescribed by the policy. Aetna Life Ins. Co. v. Hartford National Bank & Trust Co., 146 Conn. 537, 541, 153 A.2d 448 (1959); O’Connell v. Brady, 136 Conn. 475, 480, 72 A.2d 493 (1950). The life insurance policy purchased by White sets forth only one method by which a change of beneficiary may be effected: “[TJhe owner [of the policy] may change the Beneficiary during the lifetime of the Insured by filing a satisfactory written request with us at our Executive office. . . .” (Emphasis added.) Because Jurinske, rather than the owner of the policy, signed the change of beneficiary form and submitted it to the defendant after the death of the insured, the request did not comply with the terms of the contract and, therefore, did not effect a change of beneficiary. The trial court did not reach the defendant’s special defense that the plaintiff’s claims are barred by his failure to question or challenge the fraudulent change of beneficiary request in a timely manner. The defendant will have the opportunity to prove that claim on retrial.

The judgment of the trial court is reversed, and the case is remanded for a new trial.

In this opinion the other justices concurred.

       Barry C. Knott has been substituted as the executor of White’s estate and as the plaintiff in this case.

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

       We were informed at oral argument that Jurinske had absconded with and squandered the policy proceeds.

       On December 11, 1989, the Superior Court for the state of California, which had appointed the California insurance commissioner to act as conservator for the then insolvent defendant, issued an order enjoining all persons from instituting or maintaining any action against the defendant or the conservator without both prior notice to the insurance commissioner and authorization from that court.

       General Statutes § 38a-453 provides in relevant part: “eights of creditors of INSURED AGAINST BENEFICIARY, (a) The beneficiary of any life insurance policy, being a person other than the insured, whether named as beneficiary in the original policy or subsequently named as beneficiary in accordance with the terms of the policy, shall be entitled to the proceeds of the policy as against the representatives or creditors of the insured, unless the policy was procured or the designation of a beneficiary was made with intent, express or implied, to defraud creditors. . . .
      “(c) The company issuing the policy shall be discharged of all liability thereunder by payment of the proceeds in accordance with the terms of the policy, unless, before such payment, the company has received written notice, from a creditor, executor or administrator of the insured, that the policy was procured or premiums were paid thereon with intent to defraud creditors. That notice may be disregarded by the company unless proper legal proceedings to enforce the claim are begun within three months from the giving of the notice.”

       At the close of the plaintiffs case, the trial court granted the defendant’s motion to dismiss the first count of the complaint, which alleged negligence by the defendant, for failure to make out a prima facie case. See Practice Book § 302. The plaintiff has not appealed from this ruling.

       The trial court held that an insurance company is discharged from liability under a life insurance policy even if, as here, it makes a good faith payment of the proceeds to a purported beneficiary not named by the policyholder. The trial court further concluded that the legislature adopted that general rule with the enactment of General Statutes § 38a-453 (c). The court misconstrued both the rule and § 38a-453 (c). As we have discussed, an insurer will be discharged from liability only when it pays the proceeds in good faith to the beneficiary actually designated by the policyholder. Moreover, § 38a-453 (c) applies where the “policy was procured or premiums were paid thereon with intent to defraud creditors” of the insured, circumstances not alleged in this case. Section 38a-453 (c) is therefore inapposite.

       The defendant contends that the plaintiff is estopped from recovering against the defendant because he had failed to notify the defendant of his claim to the policy proceeds in a timely manner, and because he had failed to apprise the defendant of certain facts that would have alerted the defendant to the fraudulent nature of the change of beneficiary form submitted by Jurinske.

       In its cross appeal, the defendant claims that the trial court improperly denied its request for a stay on comity grounds in view of the California state court order enjoining all actions against the defendant. We dismiss the cross appeal because the defendant is not aggrieved by the judgment of the trial court. See Practice Book § 4005; Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 547 n.1, 552 A.2d 796 (1989); Orticelli v. Powers, 197 Conn. 9,11 n.1, 495 A.2d 1023 (1985). Although we may entertain such a claim where, as here, it has been raised in the party’s preliminary statement of issues; Practice Book § 4013 (a) (1) (B); see, e.g., Air-Kaman, Inc. v. Groppo, 221 Conn. 751, 754 n.5, 607 A.2d 410 (1992); we decline to consider it at this time. On remand, the trial court will have the opportunity to consider the defendant’s comity claim, should it arise, in light of existing factual circumstances.


author: Berdon, J.

text:
    Dennis E. White v. Philip Kampner et al.
    (14789)
    Borden, Berdon, Norcott, Katz and Palmer, Js.

      Argued February 18—
    decision released May 31, 1994

      Stewart I. Edelstein, with whom was Monte E. Frank, for the appellants (defendants).

      Joseph A. Mengacci, for the appellee (plaintiff).
   Berdon, J.

This appeal raises two principal issues: (1) whether the agreements entered into by the parties empowered the arbitrator to determine the arbitrability of their contractual dispute; and (2) if not, whether, after seasonable objections to arbitrability, the voluntary submission of that issue to the arbitrator constituted a waiver. The trial court vacated an arbitration award in favor of the plaintiff, Dennis E. White, and against the defendants, Philip and Helen Kampner. The plaintiff appealed to the Appellate Court, and that court reversed, holding that, under the parties’ contract, the determination of arbitrability was within the sole province of the arbitrator. White v. Kampner, 31 Conn. App. 73, 79, 623 A.2d 514 (1993). We granted the defendants’ petition for certification, and we now reverse.

The following facts are undisputed. In August, 1990, the plaintiff entered into a contract with the defendants. Under the contract, the plaintiff agreed to manage State Paint, Inc., a Connecticut corporation owned by the defendants, and was granted an option to purchase the corporation. There were two contractual clauses pertaining to the arbitrability of a dispute: a “mandatory negotiation” clause and an “arbitration” clause.

The clause entitled “mandatory negotiation” provides: “[The parties] agree that they will attempt to negotiate in good faith any dispute of any nature arising under this [agreement]. The parties shall negotiate in good faith at not less than two negotiation sessions prior to seeking any resolution of any dispute under the [arbitration provision] of this [agreement]. Each party shall have the right to legal representation at any such negotiation session.”

The clause entitled “arbitration” provides: “Any dispute or question arising under the provisions of this [agreement] which has not been resolved under [the mandatory negotiation provision] shall be determined by arbitration before one (1) arbitrator appointed by the American Arbitration Association. Arbitration proceedings shall occur at a neutral location in Waterbury, Connecticut, and shall be conducted in accordance with the rules then applicable of the American Arbitration Association. The decision of the arbitrator shall be final and may be entered in any court having jurisdiction thereof. Each party shall pay one-half of all costs and expenses of such arbitration.”

In December, 1990, the parties found themselves in a contract dispute. The defendants, alleging that the plaintiff had been dishonest in his management of the business, terminated the plaintiffs employment. Initially, both parties desired to negotiate, but after some delay not the sole fault of either party, the plaintiff filed a written demand for arbitration with the American Arbitration Association (arbitration association).

Prior to the arbitration hearing, the defendants repeatedly wrote to the arbitration association and to the plaintiff, stating that arbitration should not proceed because no negotiation sessions had occurred. Nevertheless, the arbitrator scheduled the arbitration hearing for October 30, 1991. At the commencement of the evidentiary hearing, the defendants again objected to the arbitrator’s authority to hear the dispute, claiming that it was not arbitrable due to the failure to hold the negotiation sessions. The arbitrator denied the objection. The trial court found that the parties, during the hearing before the arbitrator, had submitted the issue of arbitrability to the arbitrator, but only “in the context of an objection to the entire proceeding . . . before the arbitration evidence began.”

After the evidentiary hearing, the arbitrator made a written award in favor of the plaintiff, finding the defendants in breach of contract, and awarded damages to the plaintiff. The plaintiff filed an application to confirm the arbitration award with the Superior Court pursuant to General Statutes § 52-417, and the defendants filed an application to vacate the award pursuant to General Statutes § 52-418. The trial court determined that the issue before it was “whether the matter could legally proceed to arbitration in the first place. This question arises from the fact that, while the contract calls for two negotiation sessions as a precondition to any request for arbitration, not even one negotiation session has ever occurred in this case.” The trial court found that the defendants had preserved the issue of arbitrability by timely objection to the arbitrator before the commencement of arbitration proceedings. Because no negotiation sessions had occurred and because the defendants had preserved their right to have the court determine arbitrability, the trial court vacated the arbitration award.

On appeal, the Appellate Court determined that the parties’ contract had provided for an unconditional submission to arbitration of any dispute arising under the contract, including threshold issues of arbitrability. White v. Kampner, supra, 31 Conn. App. 77. On the basis of this determination, the Appellate Court held that the arbitrator’s decision that the dispute was arbitrable was unreviewable for errors of law or fact by the trial court. Id., 78. Accordingly, the Appellate Court did not reach the issue of waiver. The Appellate Court reversed the judgment of the trial court and ordered that court to grant the plaintiff’s application to confirm the arbitration award and deny the defendants’ application to vacate the award. Id., 79.

I

Unless statutorily mandated; see, e.g., American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 187, 530 A.2d 171 (1987); arbitration is a creature of contract. John A. Errichetti Associates v. Boutin, 183 Conn. 481, 488, 439 A.2d 416 (1981). “Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution.” Garrity v. McCaskey, 223 Conn. 1, 4-5, 612 A.2d 742 (1992). Nevertheless, “a person can be compelled to arbitrate a dispute only if, to the extent that, and in the manner in which, he has agreed so to do.” Mar sala v. Valve Corp. of America, 157 Conn. 362, 365, 254 A.2d 469 (1969). This limitation on contractual arbitration includes the requirement of satisfying any conditions precedent to arbitration. Frager v. Pennsylvania General Ins. Co., 161 Conn. 472, 477, 289 A.2d 896 (1971).

The first issue presented by this appeal is whether, by contract language, the parties manifested an intent to have the question of arbitrability determined by the arbitrator. “ ‘Whether a particular dispute is arbitrable is a question for the court, unless, by appropriate language, the parties have agreed to arbitrate that question, also.’. . . ‘The intention to have arbitrability determined by an arbitrator can be manifested by an express provision or through the use of broad terms to describe the scope of arbitration, such as “all questions in dispute and all claims arising out of” the contract or “any dispute that cannot be adjudicated.” ’ ” (Citation omitted.) Welch Group, Inc. v. Creative Drywall, Inc., 215 Conn. 464, 467, 576 A.2d 153 (1990).

The plaintiff argues, and the Appellate Court held, that the intent to have arbitrability determined by the arbitrator was manifested by the broad language of the parties’ contract. White v. Kampner, supra, 31 Conn. App. 77. The defendants argue that the trial court correctly determined that the plain language of the arbitration and negotiation clauses created a conditional submission to arbitration, rather than an unrestricted submission as determined by the Appellate Court. Under these circumstances, the defendants argue, it was for the court, not the arbitrator, ultimately to determine the issue of arbitrability. We agree with the defendants.

We initially note that, because we favor arbitration, we will defer to this alternative method of dispute resolution if the contractual arbitration provisions fall within the grey area of arbitrability, employing the “positive assurance” test as set out in United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960). Under this test, “‘judicial inquiry . . . must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance. . . . An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.’ ” (Emphasis in original.) Board of Education v. Frey, 174 Conn. 578, 582, 392 A.2d 466 (1978), quoting United Steelworkers of America v. Warrior & Gulf Navigation Co., supra, 582-83. Nevertheless, the contractual language in this case does not fall within the grey area and, therefore, the positive assurance test is not applicable.

The trial court correctly interpreted the contractual language to require satisfaction of the provisions of the mandatory negotiation clause as a condition precedent to arbitration, and correctly determined that this arbitrability issue was one for the courts to determine, not the arbitrator. Although the arbitration clause begins with broad language that generally grants jurisdiction to the arbitrator to determine the issue of arbitrability; Welch Group, Inc. v. Creative Drywall, Inc., supra, 215 Conn. 467; express language in the contract restricts the breadth of that clause. The arbitration provision that makes arbitrable “[a]ny dispute or question arising under the provisions of this [agreement]” is qualified by the clause “which has not been resolved under” the mandatory negotiation provision. (Emphasis added.) Furthermore, we construe a contract as a whole and all relevant provisions are considered when determining the intent of the parties. Bialowans v. Minor, 209 Conn. 212, 217, 550 A.2d 637 (1988). In this regard, the plain language of the mandatory negotiation provision provides that the parties are to negotiate in good faith “at not less than two negotiation sessions prior to seeking any resolution of any dispute under” the arbitration provision. (Emphasis added.)

In Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 275-77, 231 A.2d 531 (1967), an insurance contract contained an agreement to arbitrate subject to the determination of the existence of the condition precedent that the insured’s automobile involved in the accident had contact with the automobile of an uninsured motorist. The plaintiff claimed that the arbitrator had been authorized under the contract to determine the threshold issue of arbitrability—that is, whether there was the required contact between the automobiles. Id., 277. This court disagreed. “Since the question of contact was a condition precedent to arbitrability, it should not, itself, have been adjudged to be arbitrable.” Id. Likewise, in the present case, there is a contractual requirement of mandatory negotiation sessions that is a precondition to the arbitrability of any dispute, and the arbitration was limited to those issues that were “not resolved” under the mandatory negotiations.

We conclude that the mandatory negotiation sessions constituted a condition precedent to arbitration, and the determination of whether these sessions were held was not part of the contractual submission. Accordingly, under the contractual language, the issue of arbitrability in this case was one for the trial court.

II

Our analysis does not end with our interpretation of the contractual language, because the parties did proceed to arbitration, and the trial court found that the parties had submitted the issue of arbitrability to the arbitrator. The plaintiff argues that, under these circumstances, the defendants waived their right to have the issue of arbitrability determined by the court. We disagree.

We have held that there are two procedural routes by which a party may preserve the issue of the arbitrability of a particular dispute for judicial determination. First, a party may refuse to submit to arbitration at the outset and instead compel a judicial determination of the issue of arbitrability. Schwarzschild v. Martin, 191 Conn. 316, 323, 464 A.2d 774 (1983); New Britain v. State Board of Mediation & Arbitration, 178 Conn. 557, 560-61, 424 A.2d 263 (1979). “Alternatively, threshold questions of arbitrability may properly be committed to the arbitrators themselves for determination under the terms of the contract, along with the merits of the underlying dispute. ... In such cases a court, on a motion to vacate, may properly entertain a challenge to an award alleging disregard of the limits in the parties’ agreement with respect to arbitration.” (Citations omitted.) New Britain v. State Board of Mediation & Arbitration, supra, 560; see Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 105, 483 A.2d 1171 (1981); Conte v. Norwalk, 173 Conn. 77, 80, 376 A.2d 412 (1977). “Thus, the mere conformity of the submission to the award does not foreclose the court from reviewing whether that award is in violation of the parties’ agreement.” (Internal quotation marks omitted.) Schwarzschild v. Martin, supra, 323.

This “is not to say that the parties may not waive procedural limits. . . . [Pjarties [may not] forego objections to arbitration, gambling upon a favorable result and, when losing . . . raise the procedural defects in a motion to vacate.” Board of Education v. Waterbury Teachers Assn., 168 Conn. 54, 63, 357 A.2d 466 (1975). We have held that a party who voluntarily submits a dispute to arbitration without objecting to the arbitrability of the dispute waives judicial review of that issue. New Britain v. State Board of Mediation & Arbitration, supra, 178 Conn. 561. In New Britain, the record revealed that “the city joined with the union in submitting the dispute ... to arbitration and that the joint submission of the parties neither presented nor reserved any question as to the arbitrability of that dispute. Not until after the underlying dispute had been finally resolved on the merits did the plaintiff raise any question as to the arbitrability of the underlying dispute.” (Emphasis in original.) Id. Accordingly, we held that “the city’s claims as to the arbitrability of the underlying dispute must be deemed to have been waived,” and therefore the arbitrability claim was not cognizable on a motion to vacate. Id.

The facts of this case are distinguishable from those of New Britain. In this case, as we previously noted, the trial court found that the defendants repeatedly objected to the arbitrability of the dispute before the commencement of arbitration proceedings, and the plaintiff does not challenge this finding on appeal. Neither is the plaintiff’s claim of waiver enhanced because, as he argues, “the parties had in fact agreed to submit to the arbitrator the issue of their good faith attempts, or lack thereof to hold the negotiation sessions” in order to decide the issue of arbitrability. This argument ignores the trial court’s explicit finding that the issue was submitted in the context of the defendant’s objection to the arbitration proceedings. See footnote 4. Because the defendants preserved their objection to the arbitration, they had the option of committing the issue to the arbitrator without risking any waiver of their right to have the issue ultimately determined by the trial court. New Britain v. State Board of Mediation & Arbitration, supra, 178 Conn. 560. Under these circumstances, we hold that the defendants did not waive consideration of the issue of arbitrability by the trial court.

The remaining question—that is, whether the parties were required to participate in the mandatory negotiation sessions prior to arbitration—is subsumed in our analysis of the first question. In that analysis, we concluded that the sessions were required, and that the trial court was correct in vacating the arbitration award.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.

In this opinion the other justices concurred.

       We certified the following issue for review: “Where parties to a contract make the authority of an arbitrator to act conditional on the completion of two mandatory negotiation sessions prior to arbitration, and it is undisputed that neither mandatory negotiation session ever took place, and it is undisputed that the defendants never waived their challenge to the arbitrator’s authority to act, did the Appellate Court properly reverse the trial court’s vacating an arbitrator’s award?” White v. Kampner, 226 Conn. 909, 625 A.2d 1379 (1993). The principal issue, as we frame it herein, differs from the certified issue in that the certified issue assumes that it is undisputed that the defendants never waived their challenge to the arbitrator’s authority to act. The Appellate Court had no occasion to reach the issue of waiver because its interpretation of the contractual language was dispositive of the appeal. White v. Kampner, supra, 31 Conn. App. 77. Nevertheless, although the factual determinations of the trial court with respect to waiver are undisputed, both parties briefed the legal aspect of the waiver issue. See footnote 11. When the dictates of justice so demand, we may expand or modify a certified issue. Practice Book § 4187; Paranteau v. DeVita, 208 Conn. 515, 516 and n.1, 544 A.2d 634 (1988). Accordingly, we restate the issue to include the plaintiff’s claim of waiver by the defendants.

       Although the parties entered into two separate contracts, a management contract and a purchase contract, the provisions pertaining to arbitration in each contract are identical. Therefore, this opinion will refer to the contracts jointly as “the contract.”

       For example, the attorney for the defendants wrote to Jeffrey T. Zaino, tribunal administrator of the arbitration association, the following: “We have been unable to schedule a mandatory negotiation session in accordance with the underlying contract to date. I have written to [the attorney for the plaintiff] to schedule same without response.
      “Since this session forms the underlying jurisdictional basis for arbitration, please be advised that the hearing should be canceled until the complainant is in compliance with the agreement.”

       The trial court found the following: “The proceedings before the arbitrator were unrecorded, and the witnesses in this court differed on whether the question of arbitrability had been submitted to the arbitrator. The court finds that it was. [The plaintiff’s arbitration attorney] credibly testified that he and |the defendants’ arbitration attorney] agreed at the conclusion of the arbitration hearing to submit their correspondence to the arbitrator so that the arbitrator could decide the issue of arbitrability. [The plaintiffs arbitration attorney] also testified, however, that this was done in the context of an objection to the entire proceeding by [the defendants’ arbitration attorney] before the arbitration evidence began. [The defendants’] objection was based on the specific ground that no negotiation sessions had occurred. The court finds that this objection was seasonably made to the arbitrator and that no waiver occurred.”

       The arbitrator made the following award to the plaintiff: “[The defendants] breached the Management Contract with Claimant. Award in favor of Claimant of: 1. $49,883.44 with 10 [percent] per annum accruing from August 27, 1990 until date of payment; and 2. $205,200.00 with 10 [percent] per annum accruing from January 28, 1991 until date of payment.” The arbitrator also extended the time limit within which the plaintiff could exercise his option to purchase the corporation.

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

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

       The Appellate Court noted: “Although the arbitrator’s award did not specifically address the issue of arbitrability, the arbitrator concluded that ‘[t]his award is in full and final settlement of any and all claims submitted to this arbitration.’ ” White v. Kampner, supra, 81 Conn. App. 75. Neither party challenges the Appellate Court’s determination that the arbitrator implicitly found the dispute to be arbitrable.

       Arbitration was further limited to the insured’s right to recover damages and the amount of damages. Frager v. Pennsylvania General Ins. Co., supra, 155 Conn. 275.

       We agree with the Appellate Court that “a trial court may not substitute its own findings regarding whether a party met a procedural precondition to arbitration for those of the arbitrator when the arbitrator is contractually empowered to decide the question of arbitrability.” (Emphasis added.) White v. Kampner, supra, 31 Conn. App. 78, citing East Hartford v. East Hartford Municipal Employees Union, Inc., 206 Conn. 643, 656-57, 539 A.2d 125 (1988). Nevertheless, the issue presented by this case is whether the arbitrator was indeed contractually empowered to decide the question of arbitrability. In that regard, this case is distinguishable from East Hartford v. East Hartford Municipal Employees Union, Inc., supra. In East Hartford, a collective bargaining agreement contained broad language providing for the unrestricted submission of all disputes, and there were “no restrictions in the collective bargaining agreement on what issues may be decided by the arbitrators.” Id., 656. Under those circumstances, we rejected a claim that the trial court retained jurisdiction over disputes regarding the satisfaction of procedural prerequisites to arbitrability. Id., 656-57. We held that the language of the contract answers the question of whether the trial court or the arbitrator determines issues of arbitrability, not the formal identity of the issue as procedural or substantive. Id.; see Gary Excavating, Inc. v. North Haven, 164 Conn. 119, 123, 318 A.2d 84 (1972) (where contract provided in broad, unconditioned terms that “ ‘[a]ny disagreement arising out of this contract or from the breach thereof shall be submitted to arbitration,’ ” the arbitrator, not the court, has the authority to determine whether dispute was arbitrable based on claim that party pursued complaint in untimely fashion). In the present case, unlike in East Hartford and Gary Excavating, Inc., the contract language specifically expresses an intent to make arbitrable only the category of disputes not resolved through the mandatory negotiation sessions.

       In the context of this case, there are two ways by which the defendants could potentially have waived their right to have arbitrability determined by the trial court. First, the defendants could have waived the requirement of mandatory negotiation sessions either expressly or through conduct repudiating their duty to negotiate. The trial court found, however, that the defendants were not responsible for the failure to hold the negotiation sessions, and therefore did not waive the threshold issue of arbitrability by their conduct. The plaintiff does not challenge this finding on appeal, and therefore this issue is not before us.
      The second way that the defendants could have waived their right to have arbitrability determined by the trial court is if the defendants had agreed to submit the issue of arbitrability for final determination by the arbitrator without a right to subsequent judicial determination. This is the waiver issue that is before this court.

       The defendants initially argued that the issue of arbitrability is one of subject matter jurisdiction that cannot be waived even if the losing party voluntarily proceeds to arbitration without objection and then brings a motion to vacate to the trial court. The defendants rely on Bennett v. Meader, 208 Conn. 352, 364, 545 A.2d 553 (1988). We disagree with the defendants on this point.
      In Bennett, the parties entered into an oral agreement to arbitrate their dispute. Id., 354. The plaintiffs did not object before the arbitrator as to the arbitrability of their dispute. Id., 364. The trial court vacated the arbitration award on the plaintiffs’ motion, holding that the oral arbitration agreement was unenforceable. Id., 354-55. This court affirmed, noting that by express statutory command; General Statutes § 52-408; arbitration agreements must be in writing to be enforceable. Id., 362. We rejected the defendant’s argument that the plaintiffs had waived their right to challenge the validity of the arbitration agreement by participating in arbitration proceedings without objection, because “[t]he authority of the arbitrator is a subject matter jurisdiction issue, and as such it may be challenged at any time prior to a final court judgment.” Id., 364. Despite the expansive language of this last statement, however, it is clear that Bennett does not stand for the broad proposition, argued by the defendants, that all issues of arbitrability involve subject matter jurisdiction. To the contrary, the specific holding of Bennett is “that an agreement to arbitrate must meet the requirements of the arbitration statute, including the requirement that the agreement be in writing, or it is invalid.” (Emphasis added.) Id. There is no claim in the present appeal that the parties’ agreement to arbitrate did not meet the requirements of § 52-408.
      If the defendants’ expansive reading of Bennett were correct, the fact that the defendants objected before the arbitrator in the present case would be wholly irrelevant, as they could have proceeded to arbitration without objection, and without raising the arbitrability issue, challenging arbitrability only upon an unfavorable result in the arbitration hearing. This result would be inconsistent with the well established principle that a party can waive judicial review of arbitrability absent clear objection before the arbitrator; New Britain v. State Board of Mediation & Arbitration, supra, 178 Conn. 560-61; because subject matter jurisdiction cannot be waived. Therefore, we conclude that the issue of arbitrability in this case does not implicate subject matter jurisdiction.