author: Berdon, J.

text:
    Anthony Lozada v. Warden, State Prison
    (14359)
    Peters, C. J., Callahan, Glass, Borden and Berdon, Js.
    Argued March 25
    decision released September 1, 1992

      James M. Ralls, assistant state’s attorney, with whom, on the brief, was Edward Ricciardi, assistant state’s attorney, for the appellant (respondent).

      James J. Ruane, special public defender, for the appellee (petitioner).
   Berdon, J.

The sole issue certified in this appeal is whether the Appellate Court was correct in concluding that the petitioner, Anthony Lozada, who had been convicted of a crime, was entitled to seek a writ of habeas corpus on the ground that his court appointed attorney in a previous habeas corpus proceeding had rendered ineffective assistance of counsel. Lozada v. Warden, 24 Conn. App. 723, 591 A.2d 1272 (1991). Addressing this issue, the respondent, the warden of the state prison, raises the following arguments: (1) there is no statutory right to effective assistance of habeas counsel; (2) the writ of habeas corpus is not an available remedy for ineffective assistance of habeas counsel; and (3) relitigation is barred on the grounds of res judicata. We affirm the judgment of the Appellate Court.

The petitioner pleaded guilty to the crime of felony murder in violation of General Statutes § 53a-54c and, on December 9, 1983, the trial court, DeMayo, j., sentenced him to imprisonment for a term of twenty-five years. On October 1,1984, the petitioner filed his first petition for habeas corpus claiming ineffective assistance of trial counsel. He alleged that his trial counsel had been ineffective because he had failed: (1) to conduct an adequate investigation in order to establish the defense of intoxication; (2) to file a motion challenging the validity of the petitioner’s confession; and (3) to consult with the petitioner and advise him of his rights. After a hearing, the habeas court, Kaplan, J., dismissed the petition because the petitioner had failed to prove his allegations. An appeal from that dismissal was taken to the Appellate Court, which dismissed the appeal on June 2, 1988, due to the petitioner’s failure to file his pro se brief.

On September 22, 1989, the petitioner filed a second petition for habeas corpus claiming ineffective assistance of habeas counsel. The petitioner, in that petition, alleged that counsel at his first habeas hearing was ineffective because he had failed: (1) to depose or interview trial counsel; (2) to examine adequately trial counsel at the habeas hearing; (3) to develop adequately the facts at his trial; and (4) to develop his case and to interview witnesses regarding his criminal case. The court, acting on a motion filed by the respondent, quashed the petition pursuant to Practice Book § 532 because, the court concluded, the petitioner could not challenge the effectiveness of habeas counsel through a second writ of habeas corpus. In the alternative, the court dismissed the petition pursuant to Practice Book § 531 because the petition was based on the same grounds as the first habeas petition.

The Appellate Court reversed, concluding that the petitioner could seek a writ of habeas corpus on the grounds of ineffective assistance of habeas counsel. Lozada v. Warden, supra, 729. We granted certification to appeal on the following question: “Was the Appellate Court correct in concluding that the petitioner was entitled to seek a writ of habeas corpus on the ground that his attorney in his prior habeas corpus proceeding rendered ineffective assistance of counsel?” Lozada v. Warden, 220 Conn. 907, 597 A.2d 334 (1992). We agree with the Appellate Court.

I

The crux of the respondent’s appeal is that there is no right to effective assistance of habeas counsel because there is no statutory reference to the qualifications of counsel and, therefore, no remedy is available should counsel prove ineffective. We disagree.

The right to effective assistance of counsel is predicated on the statutory right to habeas counsel pursuant to General Statutes § 51-296, which provides for the appointment of counsel for an indigent person “in any habeas corpus proceeding arising from a criminal matter . . . .’’It would be absurd to have the right to appointed counsel who is not required to be competent. “[C]ounsel should be appointed in post conviction matters .... When counsel is so appointed he must be effective and competent. Otherwise, the appointment is a useless formality.” Cullins v. Crouse, 348 F.2d 887, 889 (10th Cir. 1965); see United States v. Wren, 682 F. Sup. 1237, 1241-42 (S.D. Ga. 1988) (an indigent federal probationer’s statutory right to appointed counsel at a probation revocation hearing under 18 U.S.C. § 3006A (a) (1) (C) “would be meaningless if it did not embody a requirement that counsel be effective as well as merely present”). Indeed, § 51-296 would become an empty shell if it did not embrace the right to have the assistance of a competent attorney.

Although cloaked in constitutional garb, the reasoning and logic of State v. Anonymous, 179 Conn. 155, 425 A.2d 939 (1979), is persuasive. In that case, which involved the termination of parental rights, we held that “[w]here, however, as here, a statute ... or practice book rule . . . mandates the assistance of counsel, it is implicit that this means competent counsel.” Id., 160; see In re Alexander V., 223 Conn. 557, 569-70, 613 A.2d 780 (1992). Accordingly, we agree with the Appellate Court and reject this claim by the respondent.

II

The respondent next argues that because the petitioner predicates his claim solely on the statutory right to counsel, the remedy of habeas corpus is not available. In other words, the respondent claims that the writ of habeas corpus is reserved solely for claims arising under the constitution. We disagree.

We have held that the writ of habeas corpus is available as a remedy for a “miscarriage of justice or other prejudice.” D’Amico v. Manson, 193 Conn. 144, 156, 476 A.2d 543 (1984); see Delevieleuse v. Manson, 184 Conn. 434, 439 A.2d 1055 (1981) (review through a petition for habeas corpus the statutory right to appropriate “jail credit”). As this court stated in Bunkley v. Commissioner of Correction, 222 Conn. 444, 460-61, 610 A.2d 598 (1992), the “principal purpose of the writ of habeas corpus is to serve as ‘a bulwark against convictions that violate “fundamental fairness.” ’ Engle v. Isaac, 456 U.S. 107, 126, 102 S. Ct. 1558, 71 L. Ed. 2d 783 [reh. denied, 456 U.S. 1001, 102 S. Ct. 2286, 73 L. Ed. 2d 1296] (1982), quoting Wainwright v. Sykes, 433 U.S. 72, 97, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977) (Stevens, J., concurring). This court has taken the same view. ‘To mount a successful collateral attack on his conviction a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417, reh. denied, 369 U.S. 808, 82 S. Ct. 640, 7 L. Ed. 2d 556 (1962).’ D’Amico v. Manson, [supra, 156-57]; see also Bowers v. Warden, 19 Conn. App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989).” Indeed, just recently this court, in Safford v. Warden, 223 Conn. 180, 191 n.13, 612 A.2d 1161 (1992), put the issue to rest when it recognized that the great writ of liberty is not a remedy for constitutional violations exclusively, albeit most cases in which the remedy has been applied involve issues of fundamental fairness that implicate constitutional rights. Surely, fundamental fairness opens the door for relief by habeas corpus when the state, in discharging its statutory duty, appoints incompetent counsel.

Furthermore, the statutory right to competent trial counsel; Aillon v. Meachum, 211 Conn. 352, 559 A.2d 206 (1989); and appellate counsel; Valeriano v. Bronson, 209 Conn. 75, 546 A.2d 1380 (1988); under § 51-296, has been the subject of habeas corpus proceedings on numerous occasions. See, e.g., Bunkley v. Commissioner of Correction, supra; Fair v. Warden, 211 Conn. 398, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S. Ct. 512, 108 L. Ed. 2d 514 (1989). The procedure for testing the competency of appointed counsel under § 51-296—whether it be trial or appellate—by way of habeas corpus proceedings is so embedded in our jurisprudence that its availability is now beyond debate. Indeed, in State v. Leecan, 198 Conn. 517, 542, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986), we held that the claim of ineffective assistance of counsel must be resolved in a habeas corpus proceeding. Accordingly, we reject the respondent’s argument that nonconstitutional claims cannot be raised and remedied by way of habeas corpus proceedings.

The respondent also argues that the writ is available only to attack the validity of the underlying criminal judgment or to challenge a wrongful confinement. See 1 Z. Swift, A Digest of the Laws of the State of Connecticut (1862) c. XI, § IV, p. 581 (a writ of habeas corpus could be granted “in all cases where any person is restrained of his liberty by imprisonment . . . by any process or way not warranted by law; or when he is unlawfully confined, or wrongly deprived of his liberty by a private person”); 3 W. Blackstone, Commentaries on the Laws of England (1898) § 4, p. 1127 (writ of habeas corpus remedy for “all manner of illegal confinement”). The writ of habeas corpus, as it is employed in the twentieth century, however, does not focus solely upon a direct attack on the underlying judgment or upon release from confinement. See, e.g., Gaines v. Man son, 194 Conn. 510, 481 A.2d 1084 (1984) (undue appellate delay); Arey v. Warden, 187 Conn. 324, 445 A.2d 916 (1982) (conditions of confinement); Roque v. Warden, 181 Conn. 85, 434 A.2d 348 (1980) (first amendment issues); Negron v. Warden, 180 Conn. 153, 429 A.2d 841 (1980) (state’s extradition practice); Doe v. Doe, 163 Conn. 340, 307 A.2d 166 (1972) (custody and visitation disputes). Although we have not resolved the precise limits of its scope for challenges that do not involve release; Sanchez v. Warden, 214 Conn. 23, 34, 570 A.2d 673 (1990); we need not delve into that quagmire to resolve this case.

In this case, the subject of the writ—that is, whether the accused had reasonably competent habeas and trial counsel—are matters that ultimately challenge the underlying conviction. The respondent does not question that if this were the petitioner’s first habeas corpus petition, he would be entitled to challenge the competency of his trial attorney, even though the petitioner’s success would lead only to a new trial. See, e.g., Johnson v. Commissioner of Correction, 222 Conn. 87, 608 A.2d 667 (1992). Also, it is beyond dispute that the great writ may be used as a vehicle to challenge the competency of appellate counsel, even though granting the writ would likewise not result in release, but only in a new trial. See, e.g., Valeriano v. Bronson, supra.

The same is true in the present case. To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective. “A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel’s performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense. . . . Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984); Aillon v. Meachum, [supra, 357].” (Internal quotation marks omitted.) Williams v. Warden, 217 Conn. 419, 422, 586 A.2d 582 (1991). Only if the petitioner succeeds in what he admits is a herculean task will he receive a new trial. This new trial would go to the heart of the underlying conviction to no lesser extent than if it were a challenge predicated on ineffective assistance of trial or appellate counsel. The second habeas petition is inextricably interwoven with the merits of the original judgment by challenging the very fabric of the conviction that led to the confinement. Accordingly, we reject the respondent’s claim that habeas corpus is not an appropriate remedy for ineffective assistance of appointed habeas counsel.

III

The respondent raises the claim that res judicata prohibits a second habeas proceeding because the issue of ineffective assistance of trial counsel was already litigated in the first habeas proceeding. Moreover, the respondent argues, Practice Book § 531 requires dismissal. We disagree.

First, the United States Supreme Court has long held that the strict application of the doctrine of res judicata should not control successive petitions for habeas corpus. “In Salinger v. Loisel, [265 U.S. 224, 44 S. Ct. 519, 68 L. Ed. 989 (1924)], we held that in the federal courts the doctrine of res judicata does not apply to a refusal to discharge a prisoner on habeas corpus; but that in those courts, where the prisoner presents a second petition, the weight to be given to the prior refusal is to be determined according to a sound judicial discretion guided and controlled by a consideration of whatever has a rational bearing on the subject.” Wong Doo v. United States, 265 U.S. 239, 240, 44 S. Ct. 524, 68 L. Ed. 999 (1924).

We agree with the Appellate Court that the second habeas petition is not predicated on the same issues addressed in the first petition. Although the petitioner must, by necessity, repeat his allegations of trial counsel’s inadequacy, there may never have been a proper determination of that issue in the first habeas proceeding because of the allegedly incompetent habeas counsel. The claim of ineffective assistance of habeas counsel, when added to the claim of ineffective assistance of trial counsel, results in a different issue.

Second, the plain language of § 531 would not require dismissal of the second habeas petition. “The language of § 531 is clear on its face and prescribes that trial courts may dismiss a second application without a hearing only if that application asserts the same grounds and fails to state new facts or proffer new evidence not reasonably available to the petitioner at the hearing on his previous application. The necessary implication of this prescription is that if different grounds are asserted, a hearing on the second application is indicated. It is also clear that in this context ‘ground’ must mean a ‘sufficient legal basis for granting the relief sought.’ Sanders v. United States, 373 U.S. 1, 16, 83 S. Ct. 1068, 10 L. Ed. 2d 148 [1962].” (Emphasis added.) Negron v. Warden, supra, 158. In this case, asserting ineffective assistance of appointed habeas counsel is a new ground. “[S]hould doubts arise in particular cases as to whether two grounds are different or the same, they should be resolved in favor of the applicant.” (Internal quotation marks omitted.) Id., 165-66.

We hold that the Appellate Court properly concluded that a person convicted of a crime is entitled to seek a writ of habeas corpus on the ground that his attorney in his prior habeas corpus proceeding rendered ineffective assistance.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-54c provides: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”

       On July 30, 1986, the petitioner filed his second habeas corpus petition, which alleged that the petitioner was illegally confined because General Statutes § 53a-54c, the felony murder statute, was unconstitutional. The petitioner later abandoned that claim. Subsequently, he amended that petition on August 15, 1989, and again revised it on September 22, 1989, alleging that he had been deprived of effective assistance of counsel at his first habeas hearing.

       The petitioner’s second revised petition for a writ of habeas corpus alleged in pertinent part: “2. The petitioner’s imprisonment is illegal in that:
      “a. the petitioner’s counsel . . . failed to render effective assistance of counsel at the first habeas corpus proceeding in violation of [the] petitioner’s sixth and fourteenth amendment rights when [counsel] unreasonably and prejudicially:
      “(1) failed to properly and adequately prepare for the habeas corpus hearing in that he:
      “a. failed to depose or in any other manner interview petitioner’s trial counsel in preparation for the habeas hearing of January 25, 1985;
      “b. failed to adequately examine petitioner’s trial counsel during the hearing of January 25, 1985;
      “c. failed to adequately determine and develop the petitioner’s version of the facts of his criminal case;
      “d. failed to adequately determine and develop the petitioner’s version of why he was rendered ineffective assistance of counsel in [the petitioner’s] criminal case;
      “e. failed to interview relevant witnesses regarding [the petitioner’s] criminal case;
      “f. failed to interview relevant witnesses regarding [the] petitioner’s legal representation in his criminal case;
      “g. failed to adequately utilize available means of discovery.”

       The respondent originally filed a motion to dismiss under Practice Book § 531; see footnote 6, infra; but the parties agreed to treat the motion as both a motion to dismiss and as a motion to quash under Practice Book § 532. See footnote 5, infra.

       Practice Book § 532 provides: “The sufficiency of the petition on which the writ was granted and the propriety of the issuance of the writ may be tested, before a return is filed, by a motion to quash. On such a motion the allegations of the petition are deemed admitted. The motion to quash is not a means by which to test the legal sufficiency of the facts alleged in a return or the answer to the return.”

       Practice Book § 531 provides: “If the petitioner has filed a previous application, it and the action taken thereon shall be summarily described in the pending application. If a previous application brought on the same grounds was denied, the pending application may be dismissed without hearing, unless it states new facts or proffers new evidence not reasonably available at the previous hearing.”

       General Statutes § 51-296 (a) provides in relevant part: “In any criminal action, in any habeas corpus proceeding arising from a criminal matter, in any extradition proceeding, or in any delinquency matter, the court before which the matter is pending shall, if it determines after investigation by the public defender or his office that a defendant is indigent as defined under this chapter, designate a public defender, assistant public defender or deputy assistant public defender to represent such indigent defendant . . . .”

       We agree with the respondent that the petitioner possesses no federal constitutional right to counsel in a habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 559, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987). Furthermore, although our state constitution provides for the right to bring a petition for a writ of habeas corpus; Conn. Const., art. I, § 12; and the right to counsel; Conn. Const., art. I, § 8; the petitioner did not raise any state constitutional claims in the second habeas petition, in the Appellate Court, or as an alternative ground upon which to confirm the Appellate Court’s judgment pursuant to Practice Book § 4013 (a) (1). Accordingly, we will not review the constitutional issues under our state constitution. State v. Genotti, 220 Conn. 796, 812, 601 A.2d 1013 (1992).

       The respondent claims that the proper remedy for a clairr of ineffective assistance of habeas counsel is a petition for a new trial under General Statutes § 52-270. Whether that is an additional remedy; see Palverari v. Finta, 129 Conn. 38, 26 A.2d 229 (1942) (denial of a new trial under § 52-270 due to negligence of attorney); we need not address at this time.

       See footnote 6, supra.

       Lastly, the respondent sounds an alarm that the Appellate Court’s decision will open the floodgates for successive and unlimited petitions for habeas corpus on the basis of ineffective assistance of habeas counsel. That is not this case. Moreover, we addressed the same basic concerns in Negron v. Warden, 180 Conn. 153, 166 n.6, 429 A.2d 841 (1980). Our reasons for not subscribing to the respondent’s “pessimism,” and the availability to the court of restrictive measures referred to therein, remain the same today.


source: Caselaw Access Project

author: Berdon, J.,

license: Public Domain

text:
    State of Connecticut v. Larry Plude

      James J. Ruane, in support of the petition.

      Richard F. Jacobson, assistant state’s attorney, in opposition.
    Decided June 9, 1992
   The defendant's petition for certification for appeal from the Appellate Court is dismissed.

Berdon, J.,

dissenting. The defendant, Larry Plude, petitions this court for certification to appeal from the Appellate Court's denial of the relief requested in the defendant's motion to review the trial court’s denial of posttrial bail. Despite oral argument before the Appellate Court, that court did not render an opinion, either oral or written. I agree with the defendant that certification should be granted so that the procedure for the setting of an appeal bond, as well as the contours of the trial court's duty and discretion, can be fairly determined in this case and similar cases that will arise in the future.

The majority dismisses the petition on the ground that we do not have jurisdiction. Because the defendant is being deprived of his liberty, I believe we have jurisdiction. See State v. Ayala, 222 Conn. 331, 354, 610 A.2d 1162 (1992) (Berdon, J., dissenting). Accordingly, I would grant certification.


text:
    Citicorp Mortgage, Inc. v. Felix Burgos et al.

      Felix Burgos, pro se, in support of the petition.
    Decided June 10, 1992
   The named defendant’s petition for certification for appeal from the Appellate Court is denied.


text:
    State of Connecticut v. Michael J. Marsala

      Richard Emanuel, assistant public defender, and G. Douglas Nash, public defender, in support of the petition.

      Richard F. Jacobson and C. Robert Satti, Jr., assistsant state’s attorneys, in opposition.
    Decided June 10, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 291, is granted, limited to the following issues:

“1. Whether the Appellate Court correctly treated a motion for reargument as a motion for reconsideration, and in thereafter deciding a question of substance, which reversed a trial court conclusion, without the benefit of either briefs or oral argument?
“2. Whether the Appellate Court properly concluded that the search warrant affidavit should be evaluated under the principles of State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991)?
“3. If the principles of State v. Barton, supra, are applicable to this case, must the validity of the warrant first be reviewed by a trial court, rather than an appellate court?
“4. Did the Appellate Court have jurisdiction/authority to issue, sua sponte, an amended rescript (26 Conn. App. 423) approximately sixteen months after the issuance of its initial rescript?
“5. Did the state waive or forfeit its right to assert the warrant’s validity in light of the state’s prior concessions and prior failure to raise this claim as an alternate ground?”


text:
    State of Connecticut v. Ruben Diaz

      Adam J. Teller, deputy assistant public defender, in support of the petition.

      Margaret Gaffney Radionovas, deputy assistant state’s attorney, in opposition.
    Decided June 10, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 427, is granted, limited to the following question:

“Do article first, § 7, of the constitution of the state of Connecticut, Connecticut General Statutes § 54-33f and Practice Book § 822 (4) entitle the defendant to de novo review of the issue of probable cause, rather than the deferential review undertaken by the Appellate Court?”


text:
    Edward Daly v. Lawrence F. DelPonte, Commissioner of Motor Vehicles

      Lawrence W. Berliner, in support of the petition.
    Decided June 10, 1992
   The plaintiff’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 495, is granted, limited to the following questions:

“ 1. Did the Appellate Court correctly conclude that the defendant had the statutory authority to impose postreinstatement medical reporting requirements on the plaintiff?
“2. Did the Appellate Court correctly conclude that the defendant’s imposition of postreinstatement medical reporting requirements did not violate the plaintiff’s constitutional rights to due process and equal protection of the laws?”


text:
    Vicki S. Curry v. J. William Burns, Commissioner of Transportation

      James H. Lee, in support of the petition.

      Raymond J. Plouffe, Jr., in opposition.
    Decided June 10, 1992
   The plaintiff’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 439, is granted, limited to the following question:

“Does the denial of an allegation of the furnishing of a required statutory notice constitute a clearly distinct defense for purposes of the general verdict rule?”


author: Borden, J.,

text:
    Nancy Burton v. John M. Dillman, Conservator (Estate of Doreen Danks)

      Nancy Burton, in support of the petition.

      Melinda S. Monson, in opposition.
    Decided June 18, 1992
   The plaintiff’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 479, is denied.

Borden, J.,

would grant the plaintiff’s petition for certification.


text:
    Catherine Boulay v. City of Waterbury

      Ronald Cordilico, in support of the petition.

      Thomas K. McDonough, assistant to corporation counsel, in opposition.
    Decided June 18, 1992
   The plaintiff’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 483, is denied.


text:
    Catherine Boulay v. City of Waterbury

      Thomas K. McDonough, assistant to corporation counsel, in support of the petition.
    Decided June 18, 1992
   The defendant’s cross petition for certification for appeal from the Appellate Court, 27 Conn. App. 483, is denied.


text:
    State of Connecticut v. Thomas Boykin

      Neal Cone, assistant public defender, in support of the petition.

      Paul J. Ferencek, assistant state’s attorney, in opposition.
    Decided June 25, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 558, is denied.


text:
    Cecil Young v. Margaret L. Salomone et al.

      Cecil Young, pro se, in support of the petition.

      Andrea B. Gaines, assistant attorney general, in opposition.
    Decided June 25, 1992
   The plaintiff’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 586, is denied.


text:
    State of Connecticut v. Rosalbina Novoa
   The defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 596, is granted, limited to the following question:

Bruce A. Sturman, public defender, in support of the petition.

Kevin T. Kane, assistant state’s attorney, in opposition.

Decided June 25, 1992

“In the circumstances of this case, was the use of wiretap evidence permitted by the provisions of General Statutes §§ 54-41p (b) and 54-41b?”


text:
    State of Connecticut v. Pedro Santiago
   The defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 741, is denied.

Berdon, J.,

dissenting. Because I believe that this court should not have overruled State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985), by adopting the totality of the circumstances standard of Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527, reh. denied, 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983), for determining the existence of probable cause under the state constitution, I would revisit State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991). See my concurring opinion in State v. Duntz, 223 Conn. 207, 613 A.2d 224 (1992). Furthermore, I agree with Judge O’Connell of the Appellate Court when he stated in his dissent that even under Barton, the law requires corroboration of information given by an informant who is a drug user and paid by the police. “Although an informant’s tip may be used in combination with information gathered by independent police corroboration to establish probable cause, the tip alone is not sufficient to justify intrusion on a person’s constitutional rights. The evil of eliminating the corroboration requirement is that the probable cause determination is thereby delegated to the confidential informant who is insulated from cross-examination. The protection that is afforded by a neutral and detached magistrate’s eventual involvement in the process of determining probable cause is abolished.” (Emphasis in original.) State v. Santiago, 27 Conn. App. 741, 753, 610 A.2d 666 (1992) (O’Connell, J., dissenting). I would grant certification.

Pamela J. Favreau, deputy assistant public defender, in support of the petition.

Margaret Gaffney Radionovas, deputy assistant state’s attorney, in opposition.

Decided July 28, 1992

Accordingly, I dissent.


text:
    State of Connecticut v. William Guckian

      Jack W. Fischer, deputy assistant state’s attorney, in support of the petition.

      Lawrence D. Church, in opposition.
    Decided July 9, 1992
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 225, is granted, limited to the following questions:

“1. Did the Appellate Court properly determine that the term ‘crime’ as used in Public Acts 1989, No. 89-390 includes motor vehicle violations?
“2. Did the Appellate Court properly determine that the requirement of Public Acts 1989, No. 89-390 that there be a ‘relationship’ between the alcohol or drug dependency and the crime committed does not require a showing of a causal or contributory link between the dependency and the crime?”

       Public Acts 1989, No. 89-390 is now codified in General Statutes §§ 17a-648 through 17a-658.


text:
    Michael J. Madigan v. Michelle A. Madigan

      Louis Kiefer, in support of the petition.

      Emily J. Moskowitz, in opposition.
    Decided July 9, 1992
   The plaintiffs petition for certification for appeal from the Appellate Court is granted, limited to the following question:

“Is an appeal from pendente lite orders of custody and visitation, entered in a dissolution of marriage action, of such finality as to permit appellate review?”


text:
    Middlesex Insurance Company v. James J. Quinn III et al.

      John F. Wynne, Jr., in support of the petition.

      Frederick M. Vollono, in opposition.
    Decided July 9, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 573, is granted, limited to the following question:

“Does public policy preclude an automobile insurer from excluding from uninsured motorist coverage a resident family member who owns a vehicle?”


text:
    Nelseco Navigation Company et al. v. Department of Liquor Control
   The defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 614, is granted, limited to the following question:

“Does the department of liquor control have jurisdiction to police a private party on premises covered by a liquor permit, when there was no sale or delivery of alcoholic beverages thereon by the permittee or its agent?”

Martin Rosenfeld, assistant attorney general, in support of the petition.

Decided July 9, 1992


text:
    William Parker v. Commissioner of Correction Woodrow Chapman v. Commissioner of Correction Glenn Bowers v. Commissioner of Correction James Brantley v. Commissioner of Correction Douglas Franklin v. Commissioner of Correction Johnnie Gates v. Commissioner of Correction Alvin Moore v. Commissioner of Correction William Shelton v. Commissioner of Correction Melvin Jones v. Commissioner of Correction

      Albert B. Harper, special public defender, in support of the petition.

      Paul J. Ferencek, assistant state’s attorney, in opposition.
    Decided July 9, 1992
   The petitioners’ petition for certification for appeal from the Appellate Court, 27 Conn. App. 675, is denied.


text:
    City of Hartford v. Stanley Tucker et al.

      Stanley V. Tucker, pro se, in support of the petition.
    Decided July 9, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 912, is granted, limited to the following question:

“Does the initiation of federal forfeiture proceedings stay concurrent foreclosure proceedings pending in the state’s courts?”


text:
    James B. Diamond v. George Marcinek et al.

      Kenneth J. McDonnell, in support of the petition.

      Richard F. Paladino, in opposition.
    Decided July 9, 1992
   The plaintiffs petition for certification for appeal from the Appellate Court, 27 Conn. App. 353, is granted, limited to the following question:

“In the circumstances of this case, was the plaintiff entitled to rescission and restitution relating to rescission because of the defendants’ failure to disclose the existence of a service station in violation of General Statutes §§ 22a-134 or 22a-134a or applicable administrative regulations?”


text:
    Jacqueline M. Wanta v. Robert J. Wanta

      Robert J. Wanta, pro se, in support of the petition.

      Roberta S. Friedman, in opposition.
    Decided July 9, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 913, is denied.


text:
    Linda Christopherson v. Hallmark Cards, Inc.

      Paul A. Scholder, in support of the petition.
    Decided July 9, 1992
   The plaintiff’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 917, is denied.

Berdon, J.,

did not participate.


text:
    Ronald Wislocki v. Town of Prospect et al.

      Ross T. Lessack, in support of the petition.
    Decided July 9, 1992
   The plaintiffs petition for certification for appeal from the Appellate Court, 27 Conn. App. 919, is granted, limited to the following question:

“Is a volunteer firefighter eligible for benefits under General Statutes § 7-314a also eligible for concurrent employment benefits pursuant to General Statutes § 31-310?”


text:
    Ralph Amendola et al. v. Joseph Giammattei et al. Vincent Benevento et al. v. Joseph Giammattei et al. Richard Cesare et al. v. Joseph Giammattei et al. John Murphy et al. v. Joseph Giammattei et al. George Murray et al. v. Joseph Giammattei et al. Louis Serenson et al. v. Joseph Giammattei et al. Jack Shea et al. v. Joseph Giammattei et al. Edward Swiderski et al. v. Joseph Giammattei et al. Victor Vasconcelos et al. v. Joseph Giammattei et al. Michael Vorio et al. v. Joseph Giammattei et al. Joseph Fraulo et al. v. Timberland Development Corporation et al.

      Benson A. Snaider, in support of the petition.

      James E. Swaine, in opposition.
    Decided July 10, 1992
   The defendants’ petition for certification for appeal from the Appellate Court is denied.

Berdon, J.,

dissenting. I would grant certification.


text:
    Shiang-Yueng Feng et al. v. Dart Hill Realty, Inc., et al.

      Bruce D. Tyler, in support of the petition.
    Decided July 10, 1992
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 26 Conn. App. 380, is denied.

Berdon, J.,

dissenting. I would grant certification.


text:
    State of Connecticut v. John C. Hoeplinger

      Ira B. Grudberg and Steven D. Ecker, in support of the petition.

      Richard F. Jacobson, assistant state’s attorney, in opposition.
    Decided July 16, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 643, is denied.

Berdon, J.,

dissenting. I would grant certification.


text:
    Fleet Bank of Connecticut v. Peter Lawler et al.

      Peter J. Sterling, in support of the petition.

      Anna R. Stravalle-Schmidt, in opposition.
    Decided July 16, 1992
   The defendants’ petition for certification for appeal from the Appellate Court, 27 Conn. App. 921, is denied.


text:
    Town of Voluntown v. Julius Rytman et al.

      Donald R. Beebe, in support of the petition.

      Robert B. Young, in opposition.
    Decided September 17, 1992
   The named defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 549, is denied.

Berdon, J.,

dissenting. I would grant certification to review the following issue: “Did the trial court abuse its discretion by not ordering the sale of a portion of the premises to satisfy the foreclosing tax lien on the entire premises notwithstanding that there were junior encumbrances on the entire parcel?”


text:
    Sun Hill Industries, Inc. v. Kraftsman Group, Inc.

      L. Morris Glucksman, in support of the petition.

      Scott M. Harrington, in opposition.
    Decided September 17, 1992
   The plaintiff’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 688, is denied.


text:
    Sun Hill Industries, Inc. v. Kraftsman Group, Inc.

      Scott M. Harrington, in support of the petition.
    Decided September 17, 1992
   The defendant’s cross petition for certification for appeal from the Appellate Court, 27 Conn. App. 688, is denied.


text:
    State of Connecticut v. Floyd Williams

      Elizabeth M. Inkster, assistant public defender, in support of the petition.

      Frederick W. Fawcett, assistant state’s attorney, in opposition.
    Decided September 17, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 654, is denied.

Berdon, J.,

dissenting. I would grant the defendant’s petition for certification.


text:
    Sue Ann Cappellino v. Town of Cheshire et al.

      Michael J. Belzer and William J. McCullough, assistant attorneys general, in support of the petition.
    Decided September 17, 1992
   The defendant Second Injury and Compensation Assurance Fund’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 699, is granted, limited to the following issue:

“Did the Appellate Court properly conclude that the claimant’s widow was entitled to the unpaid balance of the claimant’s permanent partial disability benefits?”


text:
    State of Connecticut v. James Arthur Barnes

      Valerie J. Quinn, assistant public defender, in support of the petition.

      Leon F. Dalbec, Jr., in opposition.
    Decided September 17, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 713, is denied.


text:
    Clarette Lemonious v. J. William Burns, Commissioner of Transportation, et al.

      Louis B. Blumenfeld, in support of the petition.

      Allisan Lee Adams, in opposition.
    Decided September 17, 1992
   The named defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 734, is denied.


text:
    Housing Authority of the City of Stamford v. Fritz Lamothe et al.

      Dennis J. O’Brien, in support of the petition.

      Mark H. Henderson, in opposition.
    Decided September 17, 1992
   The defendant Lucienne Lamothe’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 755, is granted, limited to the following issue:

“In the circumstances of this case, was the trial court required to hold an evidentiary hearing on the defendant’s motion to open a stipulated judgment for summary process?”


text:
    Richard A. Matza v. Jane W. Matza
   The defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 769, is granted, limited to the following issues:

“1. Having found that the trial court improperly denied the defendant a hearing before granting her lawyer’s motion to withdraw in the midst of trial, should the Appellate Court have simply ordered a new trial?

Wesley W. Horton and Alexandra Davis, in support of the petition.

C. Ian McLachlan, in opposition.

Decided September 17, 1992

“2. In a dissolution case, is a challenge to a ruling moot merely because the appellant does not make a general attack on the financial awards?
“3. May the trial court make an adverse inference against a defendant who rests at the end of the plaintiffs case without testifying?
“4. Should the Appellate Court have ruled on the mistrial issue?”


text:
    Richard A. Matza v. Jane W. Matza

      C. Ian McLachlan, in support of the petition.
    Decided September 17, 1992
   The plaintiffs cross petition for certification for appeal from the Appellate Court, 27 Conn. App. 769, is granted, limited to the following issue:

“Was the Appellate Court correct in finding that dissolution litigants have a constitutional right to counsel of their choice?”


text:
    Victor Santiago v. Warden, State Prison

      Paula Mangini Montonye, assistant public defender, in support of the petition.

      Kevin T. Kane, assistant state’s attorney, in opposition.
    Decided September 17, 1992
   The petitioner’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 780, is denied.


text:
    State of Connecticut v. Marvin Woodard

      William H. Narwold, William H. Bright, Jr., and Laura Welch Ray, in support of the petition.
    Decided September 17, 1992

   The defendant's petition for certification for appeal from the Appellate Court, 27 Conn. App. 786, is denied.


text:
    Wendel Hasan v. Warden, State Prison

      Louis S. Avitabile, special public defender, in support of the petition.

      Julia DiCocco Dewey, assistant state's attorney, in opposition.
    Decided September 17, 1992
   The petitioner's petition for certification for appeal from the Appellate Court, 27 Conn. App. 794, is denied.


text:
    Dominic Fulco v. The Norwich Roman Catholic Diocesan Corporation

      Joseph T. Sweeney and James M. Sconzo, in support of the petition.

      Dominic Fulco III, in opposition.
    Decided September 17, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 800, is granted, limited to the following question:

“In the circumstances of this case, was the plaintiff’s claim for negligent infliction of emotional distress barred by the exclusivity provision of the Workers’ Compensation Act, General Statutes § 31-284 (a)?”


text:
    Yellow Cab Company et al. v. Greater Hartford Transit District et al.

      Julia Morris Paul, in support of the petition.

      Glenn E. Brace and M. Katherine Bertini, in opposition.
    Decided September 17, 1992
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 27 Conn. App. 920, is denied.


text:
    Patricia Kane v. James D. Parry

      Patricia Kane, pro se, in support of the petition.

      Sperry A. DeCew, in opposition.
    Decided September 17, 1992
   The plaintiff’s petition for certification for appeal from the Appellate Court, 27 Conn. App. 923, is granted, limited to the following question:

“Where the husband’s purported IRS debt of $25,000 was divided equitably at trial, but subsequently revealed to be $191,030.43, is it error for the court to refuse to open the judgment after (a) finding mutual mistake and (b) leaving the wife with substantial debts and the husband with substantial assets?”


text:
    Nancy Zarembski et al. v. Leslie B. Warren et al.

      George W. Ganim, Jr., in support of the petition.

      Ronald D. Williams, in opposition.
    Decided September 17, 1992
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 28 Conn. App. 1, is denied.

Berdon, J.,

dissenting. I would grant the plaintiffs’ petition for certification.


text:
    State of Connecticut v. Ralph Lago, Sr.

      Wesley W. Horton and Robert M. Shields, Jr., in support of the petition.

      James A. Killen, assistant state’s attorney, in opposition.
    Decided September 17, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 9, is denied.

Berdon, J.,

dissenting. I would grant certification on the following issues: “(a) Where the police have engaged in unnecessarily suggestive procedures, should the legal question of reliability be examined with exceptionally close scrutiny, and should the standard of appellate review of a finding of reliability be de novo under article first, § 8, of the Connecticut constitution or the fourteenth amendment to the United States constitution or both?

“(b) Under the appropriate test, was the evidence reliable?

“(c) In the absence of trial court findings on reliability, should a new trial be ordered?”


text:
    State of Connecticut v. Gregg Booker

      Hubert J. Santos and Hope C. Seeley, in support of the petition.

      Carolyn K. Longstreth, assistant state’s attorney, in opposition.
    Decided September 17, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 34, is denied.

Berdon, J.,

dissenting. I would grant the defendant’s petition for certification.


text:
    State of Connecticut v. Howard Allen

      Susan B. Marhoffer, special public defender, in support of the petition.

      Frederick W. Fawcett, assistant state’s attorney, in opposition.
    Decided September 17, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 81, is denied.


text:
    State of Connecticut v. Donald Parsons

      Paul E. Zagorsky, in support of the petition.

      Jack W. Fischer, deputy assistant state’s attorney, in opposition.
    Decided September 17, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 91, is denied.


text:
    Angelina Imbrogno v. Stamford Hospital et al.

      Philip M. French, in support of the petition.

      Lucas D. Strunk, in opposition.
    Decided September 17, 1992
   The plaintiff’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 113, is denied.


text:
    State of Connecticut v. Carlos Rivera Hernandez

      Richard L. Zayas, in support of the petition.

      Rita M. Shair, assistant state’s attorney, in opposition.
    Decided September 17, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 126, is denied.


text:
    State of Connecticut v. Clifton Channer

      Elizabeth M. Inkster, assistant public defender, in support of the petition.

      Mary H. Lesser, assistant state’s attorney, in opposition.
    Decided September 17, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 161, is denied.


text:
    Fleet Bank of Connecticut v. Vincent J. Dowling, Jr. Fleet Bank of Connecticut v. Vincent J. Dowling, Sr.

      Kerry M. Wisser, in support of the petition.

      Robert A. Izard, Jr., and Denise M. Cloutier, in opposition.
    Decided September 17, 1992
   The defendants’ petition for certification for appeal from the Appellate Court, 28 Conn. App. 221, is granted, limited to the following issue:

“Did the plaintiff establish probable cause in its application for a prejudgment remedy, in which it alleged that the defendants had agreed to reimburse the plaintiff for the amounts drawn under letters of credit issued by the plaintiff?”


text:
    James Stevens v. Raymark Corporation/Raybestos Manhattan et al.

      Thomas H. Cotter, in support of the petition.
    Decided September 17, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 226, is denied.


text:
    State of Connecticut v. Vincent Colon

      Elizabeth M. Inkster, assistant public defender, in support of the petition.

      Frederick W. Fawcett, assistant state’s attorney, in opposition.
    Decided September 17, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 231, is denied.


text:
    In re Mark C. et al.

      Sara R. Martin, in support of the petition.

      Benjamin Zivyon, assistant attorney general, in opposition.
    Decided September 17, 1992
   The petitioner mother’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 247, is denied.


text:
    James Caserta v. Zoning Board of Appeals of the City of Milford et al.

      Cynthia C. Anger, assistant city attorney, in support of the petition.

      Benson A. Snaider, in opposition.
    Decided September 17, 1992
   The named defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 256, is granted, limited to the following issue:

“When the actions of a zoning enforcement officer are reviewed by a zoning board of appeal, is the proper focus for subsequent judicial review the decision of the zoning enforcement officer or the decision of the zoning board of appeal?”


text:
    George D. Jacob, Jr., et al. v. Seaboard, Inc., et al.

      Roger J. Frechette, in support of the petition.

      Stephen I. Traub, in opposition.
    Decided September 17, 1992
   The plaintiffs petition for certification for appeal from the Appellate Court, 28 Conn. App. 270, is denied.


text:
    John Michel, Jr., et al. v. Planning and Zoning Commission of the Town of Monroe et al.

      George J. Markley, in support of the petition.
    Decided September 17, 1992
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 28 Conn. App. 314, is denied.


text:
    Steven Levine v. Police Commission of the Town of Fairfield

      Donal C. Collimore, assistant town attorney, in support of the petition.
    Decided September 17, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 344, is denied.


text:
    State of Connecticut v. Donald Chapman
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 360, is granted, limited to the following issues:

“1. Did the Appellate Court correctly conclude that the statutory alternative analysis set forth in State v. Williams, 202 Conn. 349, 363-64 (1987), applied to alternative language occurring within the same statutory subsection and that the trial court’s instruction permitted the jury to consider a separate and distinct theory of criminal liability?

Lawrence J. Tytla, assistant state’s attorney, in support of the petition.

Ira B. Grudberg and Thomas W. Ude, Jr., in opposition.

Decided September 17, 1992

“2. Was the Appellate Court correct in its failure to consider whether any error in the trial court’s charge was harmless beyond a reasonable doubt?”


text:
    William Raino et al. v. Supermarkets General Corporation

      Lori Welch-Rubin, in support of the petition.

      J. Kevin Golger, in opposition.
    Decided September 17, 1992
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 28 Conn. App. 56, is denied.


text:
    Melvin Daniels v. Warden, State Prison

      Louis S. Avitabile, special public defender, in support of the petition.

      Mary H. Lesser, assistant state’s attorney, in opposition.
    Decided September 17, 1992
   The petitioner Melvin Daniels’ petition for certification for appeal from the Appellate Court, 28 Conn. App. 64, is denied.


text:
    Harvey Hoffman et al. v. Inland Wetlands Commission of the Town of Avon

      Helene Sfikas Myers and Roger Eisenstein, in support of the petition.

      Michael A. Zizka, in opposition.
    Decided September 17, 1992
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 28 Conn. App. 262, is denied.


text:
    State of Connecticut v. Mary Ephraim State of Connecticut v. Gardenia Ephraim

      Brian M. O’Connell, special public defender, in support of the petition.

      James A. Kitten, assistant state’s attorney, in opposition.
    Decided September 17, 1992
   The defendants’ petition for certification for appeal from the Appellate Court, 28 Conn. App. 306, is denied.


text:
    State of Connecticut v. Frankie Estrada

      Frederick W. Fawcett, assistant state’s attorney, in support of the petition.

      James J. Ruane, in opposition.
    Decided September 17, 1992
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 416, is denied.


text:
    State of Connecticut v. Maurice Washington

      Alfred J. Onorato, in support of the petition.

      Marjorie Allen Dauster, deputy assistant state’s attorney, in opposition.
    Decided September 17, 1992
   The defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 369, is denied.


text:
    Pullman, Comley, Bradley and Reeves v. Tuck-It-Away Bridgeport, Inc., et al.

      Alexander H. Schwartz, in support of the petition.

      William J. Wenzel and Andrew J. McDonald, in opposition.
    Decided September 17, 1992
   The defendant Vestpro Corporation’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 460, is denied.


text:
    State of Connecticut v. Reginald Harris

      G. Douglas Nash, public defender, in support of the petitions.

      Jack W. Fischer, deputy assistant state’s attorney, in opposition.
    Decided September 17, 1992
   The defendant’s petitions for certification for appeal from the Appellate Court, 28 Conn. App. 474, are denied.


text:
    John Miller et al. v. Rose M. Bourgoin et al.

      Charles F. Brower, in support of the petition.

      Alexander Scheirer, in opposition.
    Decided September 17, 1992
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 28 Conn. App. 491, is denied.


text:
    Paul J. Marquis v. Manchester Community College

      Paul J. Marquis, pro se, in support of the petition.
    Decided September 17, 1992
   The plaintiff’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 903, is denied.


text:
    Chelsea Groton Savings Bank v. Dorothy E. Gagnon et al.

      Dorothy E. Gagnon, pro se, in support of the petition.

      Jackson T. King, Jr., in opposition.
    Decided September 17, 1992
   The named defendant’s petition for certification for appeal from the Appellate Court, 28 Conn. App. 907, is denied.


author: Peters, C. J.

text:
    State of Connecticut v. James R. Welch, Sr.
    (14380)
    Peters, C. J., Callahan, Borden, Berdon and F. X. Hennessy, Js.
    Argued September 24
    decision released October 27, 1992

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were Mark S. Solak, state’s attorney, and Roger Caridad, deputy assistant state’s attorney, for the appellant (state).

      Richard Emanuel, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellee (defendant).
   Peters, C. J.

In this criminal appeal, the only certified issue is whether the improper addition of another count to the charges confronting a defendant should result in a mandate to the trial court directing an acquittal or a new trial on the added count. The state charged the defendant, James R. Welch, Sr., with two counts of sexual assault in the second degree in violation of General Statutes § 53a-71, one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a, and one count of risk of injury to a child in violation of General Statutes § 53-21. A jury convicted the defendant of all counts except the charge of sexual assault in the fourth degree, which the state had withdrawn. The trial court rendered judgment sentencing the defendant in accordance with the jury verdict, and he appealed to the Appellate Court. State v. Welch, 25 Conn. App. 270, 594 A.2d 28 (1991).

The Appellate Court determined that the defendant’s conviction should be set aside. That court ruled that, after jury selection had been completed, Practice Book § 624 required the trial court to sustain the defendant’s objection to the state’s request to amend the information by adding a second count of sexual assault involving another victim. Id., 273-74. To remedy the prejudice to the defendant caused by the lack of timely notice of all the charges against him, the Appellate Court ordered a new trial on the original count of sexual assault in the second degree and on the count of risk of injury to a child. Id., 274-75. These rulings are not at issue before us.

The Appellate Court also held that, “[bjecause the added count of the information charging sexual assault in the second degree is invalid, the judgment of conviction as to it must be set aside and a judgment of not guilty directed.” Id., 275. The Appellate Court felt bound to order this rescript because of the holding of this court in State v. Jacobowitz, 182 Conn. 585, 594, 438 A.2d 792 (1981). At the request of the state, we granted certification to reconsider the merit of our decision in State v. Jacobowitz, supra, in which, in similar circumstances, we had ruled that a defendant was entitled on remand to a direction of acquittal with respect to a count improperly added to other charges of which the defendant had had proper notice. We now overrule that part of our holding in State v. Jacobowitz, supra, and amend the remand ordered by the Appellate Court, so that the defendant may be retried on the added count charging him with sexual assault in the second degree in addition to the other counts on which the Appellate Court ordered his retrial.

When the state amends an information after the commencement of trial to add a new count that is not a lesser included offense of any count with which the defendant has properly been charged, the state violates both Practice Book § 624 and the defendant’s due process right to notice. State v. Jacobowitz, supra, 590-91. A reversal of the conviction or grant of a mistrial because of the improper amendment does not, however, preclude the state from retrying the defendant. Just as the constitutional principle against double jeopardy does not bar the state from retrying a defendant whose initial trial is set aside because of a defective probable cause hearing; State v. Boyd, 221 Conn. 685, 697, 607 A.2d 376 (1992); or a defective information or indictment; Montana v. Hall, 481 U.S. 400, 404, 107 S. Ct. 1825, 95 L. Ed. 2d 354 (1987); Illinois v. Somerville, 410 U.S. 458, 469, 93 S. Ct. 1066, 35 L. Ed. 2d 425 (1973); so the state may retry the defendant in this case.

The defendant maintains, however, that a new trial, with proper notice of all the charges against which he must defend, will not vindicate the right to due process that was violated by the improper amendment. He maintains that the improperly added count: (1) increased his exposure to punishment; (2) impaired his voir dire of the jurors who tried him; (3) led to an enhancement of his sentence; and (4) deprived him of a fair chance of an acquittal. We are not persuaded. The defendant has no claim to immunity from the improperly added count when that count could have been prosecuted separately. The sentence of which the defendant complains has been entirely set aside by the judgment of the Appellate Court. Finally, a new trial will provide the defendant with both a renewed opportunity to voir dire prospective jurors and a renewed fair chance of acquittal. The remedy for a defendant who successfully challenges his conviction on the ground of wrongfully admitted evidence, such as an identification or a confession that should have been suppressed, and whose due process rights were, therefore, violated, is not an acquittal but a new trial. See Lockhart v. Nelson, 488 U.S. 33, 38, 109 S. Ct. 285, 102 L. Ed. 2d 265 (1988). This rule obtains even in cases where the reviewing court concludes that, without the erroneously admitted evidence, there was insufficient evidence to support a conviction. Id. Accordingly, although the Practice Book violation in this case involves the defendant’s constitutional rights of due process, that violation warrants no more than a new trial.

The defendant contends finally that stare decisis suggests our continued adherence to the rule of State v. Jacobowitz, supra. That principle might control if the rescript in State v. Jacobowitz, supra, had resulted from a careful judicial consideration of competing values, honed by the thoughtful arguments of the litigants then before the court. The briefs in State v. Jacobowitz, supra, focused, however, on the propriety of the state’s amendment of the information and not on the remedy that should follow upon a determination that such an impropriety had occurred. The court did not undertake an independent inquiry into the remedial consequences of a violation of Practice Book § 624. In these circumstances, we should not perpetuate the oversight that led to an incorrect rescript in State v. Jacobowitz, supra. Cf. Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 554-55, 610 A.2d 1260 (1992).

The judgment of the Appellate Court is reversed insofar as it directed a judgment of acquittal on the added count of sexual assault in the second degree and the case is remanded to that court with direction to issue a new rescript in accordance with this opinion.

In this opinion the other justices concurred.

       Practice Book § 624 provides: “After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information or indictment at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. An amendment may charge an additional or different offense with the express consent of the defendant.”

       The defendant also challenged his conviction on several additional grounds. The Appellate Court determined that it had no need to reach these alternate grounds for reversal. State v. Welch, 25 Conn. App. 270, 275, 594 A.2d 28 (1991). With respect to the counts with which the defendant was originally charged, the court noted that the defendant had advanced no claim that the state had adduced insufficient evidence to support the guilty verdict. Id. The defendant similarly failed to challenge in the Appellate Court the sufficiency of the evidence to support his conviction on the improperly added count of sexual assault.

       The order on the state’s petition for certification to appeal was granted limited to the following issue: “Following a reversal of a judgment of conviction on the ground that a count was improperly added under Practice Book § 624, should the rescript direct a judgment of acquittal on remand, as was done in State v. Jacobowitz, 182 Conn. 585, 594 [438 A.2d 729 (1981)], or should it direct a new trial on that count?” State v. Welch, 220 Conn. 924, 598 A.2d 366 (1991). The Appellate Court’s order for a new trial on the original counts, therefore, is not before us.


author: Per Curiam.

text:
    Lawrence Loeb et al. v. Al-Mor Corporation
    (14476)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.
    Argued October 1
    decision released October 27, 1992

      Frank J. Mongillo, Jr., for the appellants (plaintiffs).

      Nancy J. Vavra, with whom, on the brief, was Milton A. Bemblum, for the appellee (defendant).
   Per Curiam.

In this action to quiet title, the appeal challenges the trial court’s interpretation of the deeds and maps on which the plaintiffs, Lawrence Loeb and Allen Loeb, relied to establish their title against the defendant, Al-Mor Corporation. The plaintiffs instituted a complaint in two counts against the defendant, seeking relief on alternate theories of record title and adverse possession. The trial court, after a hearing, rendered a judgment in favor of the defendant on both counts. The plaintiffs appealed from that judgment to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

Our examination of the record on this appeal, and the briefs and arguments of the parties, persuades us that the judgment of the trial court should be affirmed. In the circumstances of this case, the interpretation of a stipulation of the parties and of the various contested deeds and maps constituted factual issues properly resolved in the thoughtful and comprehensive memorandum of decision filed by the trial court. Loeb v. Al-Mor Corporation, 42 Conn. Sup. 279, 615 A.2d 182 (1991). Because that memorandum of decision fully states and meets the arguments raised in the present appeal, we adopt the trial court’s well reasoned decision as a correct statement of the facts and the applicable law on the contested issues. It would serve no useful purpose for us to repeat the discussion therein contained. See Einbinder v. Board of Tax Review, 217 Conn. 240, 242, 584 A.2d 1188 (1991); Fogg v. Wakelee, 196 Conn. 287, 288, 492 A.2d 511 (1985).

The judgment is affirmed.


author: Callahan, J.

text:
    Roy A. Rydingsword v. Liberty Mutual Insurance Company
    (14499)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.
    Argued September 25
    decision released November 10, 1992

      Edward J. Holahan, Jr., with whom, on the brief, was Kevin J. Gumpper, for the appellant (defendant).

      Daniel D. Portanova, with whom, on the brief, was Dominick J. Rutigliano, for the appellee (plaintiff).
   Callahan, J.

The principal issue in this appeal is whether an insurer is entitled to set off against its liability for underinsured motorist coverage an amount equal to the value of an unrealized workers’ compensation award for which the claimant has not yet chosen to apply. The defendant, Liberty Mutual Insurance Company, appeals from the judgment of the trial court modifying an award by an arbitration panel. The panel had credited the defendant insurer with an amount equal to the value of the unrealized workers’ compensation claim for which the plaintiff, Roy Rydingsword, had not yet applied. The trial court vacated the setoff to the defendant and modified the award in favor of the plaintiff. The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We reverse the judgment of the trial court.

The defendant claims that the trial court improperly found that: (1) the prospective recovery by the plaintiff of a workers’ compensation specific indemnity award for a lumbar spine disability did not constitute an amount “payable” for the purposes of the defendant’s underinsured motorist policy exclusion clause; (2) the arbitrators lacked any factual basis for determining the amount of the prospective compensation award; and (3) no compensation award becomes payable until the workers’ compensation commissioner makes findings and renders an award. We determine that the arbitrators had the authority to award a setoff upon the presentation of substantial evidence on which to base their determination of the amount of this prospective award where the claimant had chosen to bypass the workers’ compensation forum. We therefore conclude that the defendant insurer is entitled to a setoff for the prospective indemnity. Accordingly, we reverse the judgment of the trial court.

The parties stipulated to the underlying facts. The plaintiff, while in the course of his employment, was injured in an automobile accident caused solely by the negligence of a third party. The plaintiff suffered lacerations to his forehead that resulted in permanent scarring. He also sustained injuries to his lower back that resulted in a 20 percent permanent partial disability of the lumbar spine. The plaintiff recovered $20,000 from the liability insurer of the negligent driver, thereby exhausting the coverage limits of the policy of the tortfeasor.

At the time of the accident, the plaintiff was covered by a workers’ compensation insurance policy. The workers’ compensation commissioner for the fourth district approved the plaintiff’s claims for medical expenses in the amount of $2274.36, and for lost wages in the amount of $5775.77. The commissioner subsequently approved the plaintiff’s claim of permanent scarring of his forehead and awarded him $7044.51 pursuant to General Statutes § 31-308 (d). The plaintiff did not pursue a workers’ compensation claim for specific indemnity for the 20 percent disability of the lumbar spine as provided in § 31-308 (b). The plaintiff, however, did not terminate his workers’ compensation rights and his workers’ compensation case remained open throughout the course of the proceedings below.

At the time of the accident, the defendant had issued an automobile insurance policy to the plaintiff wherein it agreed to pay all sums that the insured would be legally entitled to recover as damages from the owner of an uninsured or underinsured vehicle because of injuries sustained by the insured as a result of an accident arising out of the use of such uninsured or underinsured vehicle. The policy provided uninsured/underinsured motorist coverage in the amount of $300,000. The policy provided further, however, that the limit of liability for uninsured/underinsured motorist coverage would be reduced, inter alia, by all sums “paid or payable . . . under . . . workers’ compensation law 77

Pursuant to provisions of the policy, the plaintiff demanded that the defendant proceed with arbitration. The arbitration panel found that the plaintiff had sustained damages in-the amount of $98,050.13. The panel also found that the defendant was entitled to a credit of $20,000, representing exhaustion of the third party tortfeasor’s policy, and a credit of $7044.51, representing the workers’ compensation scarring award. These credits are not at issue in this appeal.

A majority of the panel also agreed that the lumbar spine disability was work related and compensable under the workers’ compensation policy coverage held by the plaintiff’s employer. Using the formula set forth in § 31-308 (b), the majority determined that the plaintiff would be entitled to a workers’ compensation specific indemnity award of $66,602.64. The majority then calculated the present value of the indemnity to be $60,603.22. The majority found that the prospective specific indemnity award was payable under the workers’ compensation coverage and therefore allowed a credit in this amount to the defendant.

The trial court concluded, however, that the defendant was not entitled to a setoff against the underinsured motorist award equal to the calculated value of the prospective workers’ compensation specific indemnity award. The trial court determined that the use of the words “sums” and “payable” in the exclusion clause of the uninsured/underinsured motorist coverage endorsement to the automobile insurance policy connoted the existence of specific obligations payable at present or in the future. The trial court concluded, therefore, that the exclusion did not apply to the specific indemnity that had not yet been awarded by the workers’ compensation commissioner. Consequently, the trial court found that the determination of a specific value for the indemnity by the arbitration panel lacked a factual basis. The trial court vacated the credit for the value of the specific indemnity to the defendant and modified the award in favor of the plaintiff accordingly.

I

The defendant first claims that the trial court improperly concluded that the predicted recovery by the plaintiff of a workers’ compensation specific indemnity award for a lumbar spine disability did not constitute an amount payable for the purposes of the exclusion clause contained in the underinsured motorist endorsement to the automobile insurance policy. The policy provided that “[t]he limit of liability shall be reduced by all sums . . . paid or payable because of the bodily injury under any of the following or similar law: (a) workers’ compensation law . . . .” (Emphasis added.) This wording parallels the language of § 38-175a-6 (d) of the Regulations of Connecticut State Agencies, which provides in part “that the policy may provide for the reduction of limits to the extent that damages have been . . . paid or are payable under any workers’ compensation or disability benefits law . . . .” (Emphasis added.)

We have recently held that “[i]f damages are paid pursuant to the workers’ compensation law, the uninsured motorist coverage may be reduced accordingly. General Statutes § 38-175c contains no mandate that uninsured motorist coverage benefits may not be reduced.” (Emphasis added.) Wilson v. Security Ins. Co., 213 Conn. 532, 538, 569 A.2d 40, cert. denied, 498 U.S. 814, 111 S. Ct. 52, 112 L. Ed. 2d 28 (1990). General Statutes § 38a-334 (formerly § 38-175a) explicitly authorizes the insurance commissioner to adopt regulations relating to exclusions.

A

To counter the defendant’s reliance on the language in the contract and the regulations, the plaintiff contends that the meaning of the phrase “sums . . . paid or payable” in the insurance policy is ambiguous and that therefore the phrase must be construed in favor of the insured. The general rule that “[w]hen the words of an insurance contract are, without violence, susceptibie of two interpretations, that which will sustain the claim and cover the loss must, in preference, be adopted”; Raffel v. Travelers Indemnity Co., 141 Conn. 389, 392, 106 A.2d 716 (1954); does not apply in this case because the contract is not ambiguous.

The Connecticut rule of construction of insurance policies is well settled. “If the terms of an insurance policy are of doubtful meaning, that permissible construction which is most favorable to the insured is to be adopted; but if they are plain and unambiguous the established rules for the construction of contracts apply, the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning, and the courts cannot indulge in a forced construction ignoring provisions or so distorting them as to accord a meaning other than that evidently intended by the parties.” Porto v. Metropolitan Life Ins. Co., 120 Conn. 196, 200, 180 A. 289 (1935).

We have previously defined “sum” and “payable” in the context of an exclusion of benefits clause in an insurance policy. “ ‘Sum’ is defined as ‘an indefinite or specified amount of money . . . .’ Webster, Third New International Dictionary.” Griswold v. Union Labor Life Ins. Co., 186 Conn. 507, 515 n.4, 442 A.2d 920 (1982). Accordingly, we reject the assertion that the word “sums” as used in the insurance policy must only mean a specified sum of money. The plaintiff notes without further explication that the policy uses the word “sums” while the regulation uses the word “damages.” Section 38-175a-3 of the Regulations of Connecticut State Agencies does not require the use of any particular talismanic words. We discern no disparity between the exclusion allowed by § 38-175a-6 (d) and the exclusion contained in the policy of insurance issued by the defendant.

The plaintiff also contends that the words “paid or payable” constitute a unitary term. The defendant argues that the words “paid” and “payable” within the phrase “paid or payable” have different meanings. We agree with the defendant. No word or phrase in a statute is to be rendered mere surplusage. Jutkowitz v. Department of Health Services, 220 Conn. 86, 104, 596 A.2d 374 (1991). The same presumption applies to regulations promulgated by the agency charged with the implementation of the statute. “[WJithin their scope the [insurance] regulations have the force of statutes. ... In the construction of statutes, great deference is to be accorded to the construction given the statute by the agency charged with its enforcement.” Roy v. Centennial Ins. Co., 171 Conn. 463, 473, 370 A.2d 1011 (1976). Accordingly, the use by the insurance commissioner of the two words in the regulation must be viewed as intentional. Moreover, the policy language tracks the regulation and the words must be construed similarly.

“The word ‘payable’ clearly connotes that something need only be capable of being paid. ’ ’ Griswold v. Union Labor Life Ins. Co., supra, 517. The trial court construed the word “payable” to connote only an amount of money previously awarded by the commissioner but not yet collected by the claimant. We reject as unduly restrictive a construction that would allow the exclusion only if the claimant has already secured an award from the workers’ compensation commissioner but has not yet received actual payment in a fixed and determined amount at the time of the underinsured motorist arbitration hearing.

We conclude that the phrase "sums . . . payable” is not ambiguous but plainly means an ascertained amount of money that is capable of being paid. The clear language of the exclusion clause of the policy must be read to include a workers’ compensation specific indemnity award that may at some future time be paid or payable to a claimant who has chosen to bypass the workers’ compensation forum and to proceed first to demand arbitration of a claim pursuant to underinsured motorist coverage.

B

The plaintiff’s second argument in support of the trial court’s construction of "sums . . . payable” is a Dickensian claim. He contends that he has the right to a final determination of an award by the workers’ compensation commissioner before his underinsured motorist coverage carrier can receive a credit for such award even though he chooses not to submit his claim to the commissioner. The defendant’s construction of the phrase “sums . . . payable” is, however, congruent with the underlying intent of General Statutes § 38a-334 and the implementing regulations promulgated by the insurance commissioner. “The public policy established by the uninsured motorist statute is that every insured is entitled to recover for the damages he or she would have been able to recover if the uninsured motorist had maintained a policy of liability insurance.” Harvey v. Travelers Indemnity Co., 188 Conn. 245, 249, 449 A.2d 157 (1982); American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 197, 530 A.2d 171 (1987). It is a “time-honored rule that an injured party is entitled to full recovery only once for the harm suffered.” Peck v. Jacquemin, 196 Conn. 53, 70 n.19, 491 A.2d 1043 (1985). “[A]n insured may not recover double payment of damages under overlapping insurance coverage.” Pecker v. Aetna Casualty & Surety Co., 171 Conn. 443, 452, 370 A.2d 1006 (1976).

Similarly, “the policy underlying [General Statutes] § 31-293 (a) of our Workers’ Compensation Act . . . prohibits double recovery.” Gurliacci v. Mayer, 218 Conn. 531, 567, 590 A.2d 914 (1991). “One of the purposes of the workers’ compensation statute is ‘the avoidance of two independent compensations for the injury.’ ” Enquist v. General Datacom, 218 Conn. 19, 26, 587 A.2d 1029 (1991); see generally J. Asselin, Connecticut Workers’ Compensation Manual (1985) p. 272.

The trial court relied solely upon dicta in a New Jersey case referred to in Englehardt v. New Hampshire Ins. Group, 36 Conn. Sup. 256, 258, 417 A.2d 366 (1980), to support its public policy rationale for narrowly construing the exclusion clause. The court in Englehardt also stated that “[r]egardless of how persuasive the public policy stated by the New Jersey court may be, this court cannot premise a decision on public policy in defiance of state statutes or valid administrative regulations.” Id., 259. The court concluded that “the insurance policy provision providing for the deductibility of workmen’s compensation awards from uninsured motorist coverage is valid and enforceable in Connecticut.” Id., 260. Moreover, we discern no cogent public policy reason why the insurance commissioner would intend to prevent double recovery in tort but to allow it in workers’ compensation. We read the word “payable” in the regulation to avoid this disparate result.

We recently addressed the issue of whether an employer was entitled to be reimbursed for the estimated value of a specific indemnity that the employee might be entitled to recover. Gurliacci v. Mayer, supra. The plaintiff in Gurliacci never made a claim for a specific award for permanent partial incapacity nor was there a determination of such a claim by the workers’ compensation commission. Id., 566. Although we decided that, under the circumstances of that case, the trial court correctly refused to reimburse the employer for the present value of the specific award, we also concluded that the employer would be entitled to reimbursement should the plaintiff recover a third party award on retrial. Id., 569. Pursuant to § 31-293 (a), the employer could intervene in a subsequent action against a third party and thus become entitled to reimbursement from the net proceeds for benefits paid and the present value of probable future benefits. See Enquist v. General Datacom, supra; Love v. J. P. Stevens & Co., 218 Conn. 46, 50, 587 A.2d 1042 (1991). Workers’ compensation awards, however, are exempt from attachment and execution and there is no provision for third party intervenors in workers’ compensation proceedings. General Statutes § 31-320. The underinsured motorist insurance carrier is thus unable to place a lien for reimbursement upon any future workers’ compensation benefits awarded. Under current practices, the uninsured/underinsured motor vehicle insurance carrier must claim a credit of a workers’ compensation award during the underinsured arbitration process, or not at all.

The plaintiff asserts that the workers’ compensation commissioner must make a finding about the amount of a compensation award before an insurer can seek a credit in the underinsured arbitration. The plaintiff also claims, however, that he can choose to bypass the commissioner until a point of time subsequent to his recovery of underinsured motorist benefits. His argument thus renders the credit for workers’ compensation recovery illusory. A claimant cannot elect to postpone a proceeding in the workers’ compensation forum in favor of first making a demand for arbitration on the underinsured motorist insurance carrier and then argue that the value of the workers’ compensation specific indemnity is speculative and therefore not a sum payable.

The Workers’ Compensation Act delegates responsibility to the commissioner to calculate credit for unknown future benefits. Love v. J. P. Stevens & Co., supra, 50. Section 31-293 (a) does not explicitly provide that such a determination must be made by the commissioner. See also Gurliacci v. Mayer, supra, 571. If the claimant deprives the underinsured motorist carrier of the benefit of a finding by the workers’ compensation commissioner and the value of the unrealized claim is determined in the arbitration forum on the basis of substantial evidence, the claimant cannot be heard to complain.

II

The defendant next claims that the trial court improperly concluded that the arbitration panel had no factual basis for determining the value of the plaintiff’s specific indemnity and that such a determination was speculative. We agree with the defendant.

Section 31-308 (b) (13) provides the formula to calculate the value of the specific indemnity for a back injury. The calculation depends upon only two variables: (1) the claimant’s weekly compensation rate; and (2) the proportion of disability of the claimant’s back.

Factual findings of an arbitration panel considering underinsured motorist coverage are subject to de novo review by the courts using a substantial evidence standard of judicial review. Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 660-61, 591 A.2d 101 (1991). The parties stipulated in the trial court that there was substantial evidence in the record to support the findings of certain basic facts by the arbitration panel: that the plaintiff had suffered his injuries while in the course of his employment; that the plaintiff had suffered a permanent partial 20 percent disability of the back; that the plaintiff was covered by a policy of workers’ compensation insurance; that the injuries sustained by the plaintiff were compensable under the terms of the workers’ compensation policy; that his weekly compensation rate was $640.41; and that the computation of the present value of the special indemnity was mathematically correct. The trial court disagreed, however, that the arbitrators’ determination of the value of the specific indemnity was a reasonable conclusion drawn from these basic facts. Instead, it held that the determination of the amount of a specific indemnity lies solely within the province of the workers’ compensation commissioner. We disagree. The plaintiff chose not to pursue his claim for a workers’ compensation specific indemnity award. He thus avoided the only forum that he claims had the authority to value the specific indemnity. Consequently, the arbitration panel carried out its responsibilities and in the process assigned a value to the unrealized specific indemnity in order to assign a value to the credit to which the insurer was entitled. That value was based on substantial evidence.

The judgment is reversed and the case is remanded with direction to grant the application to confirm the arbitration award.

In this opinion the other justices concurred.

       In his brief on appeal, the plaintiff claimed, in the alternative, that any offset for a prospective workers’ compensation recovery would serve to reduce only the $300,000 coverage limit of the policy, and not the amount of his damages. This claim was never raised below. Accordingly, we do not review this alternative claim raised for the first time on appeal. “ ‘Only in the most exceptional circumstances will this court consider a claim that was not raised [below].’ ” Dubois v. General Dynamics Corporation, 222 Conn. 62, 68, 607 A.2d 431 (1992), quoting Cahill v. Board of Education, 187 Conn. 94, 99, 444 A.2d 907 (1982); see Practice Book § 4185.

       The workers’ compensation commissioner awarded the plaintiff payment of eleven weeks compensation for the permanent disfigurement of the plaintiffs forehead. In its memorandum of decision, the trial court incorrectly stated the amount of the award as $7004.51. The amount of this scarring award is not in dispute on appeal. We adopt the figure of $7044.51.

       General Statutes § 31-308 (d) provides in pertinent part: “[T]he commissioner may award such compensation as he deems just, equal to sixty-six and two-thirds per cent of the average weekly earnings of the injured employee, but in no case more than the maximum weekly benefit rate as established in section 31-309, for any permanent significant disfigurement of, or permanent significant scar on, any part of the body up to two hundred and eight weeks . . . .” Subsequent to the time of the award in question here, this statute was amended in ways not relevant to this opinion.

       General Statutes § 31-308 (b) provides in pertinent part: “With respect to the following-described injuries the compensation, in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation, shall be sixty-six and two-thirds per cent of the average weekly earnings of the injured employee, but in no case more than the maximum weekly benefit rate set forth in section 31-309, or less than fifty dollars weekly . . . (13) for the loss of the use of the back, that number of weeks which the proportion of incapacity represents to the maximum of five hundred and twenty weeks.” Subsequent to the time of the award in question here, this statute was amended in ways not relevant to this opinion.

       The plaintiff was unwilling in this court to stipulate that he would not pursue a claim in the workers’ compensation forum for the specific indemnity for the 20 percent disability of the lumbar spine.

       See footnote 20, infra.

       The arbitrators obtained the discount to present value by consulting a table published by the state treasurer, Second Injury and Compensation Assurance Fund, which they noted is commonly used by workers’ compensation commissioners throughout the state. The parties stipulated that the calculations by the arbitrators were mathematically correct.

       The arbitrators made a net award of $10,402.40 to the plaintiff, which was calculated as follows: total damages ($98,050.13) minus tortfeasor liability insurance proceeds ($20,000) minus scarring award ($7044.51) minus present value of the specific indemnity ($60,603.22).

       The trial court recognized in its memorandum of decision that the “substantial evidence” standard applied to its review of the factual findings by the arbitration panel. Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 656, 591 A.2d 101 (1991).

       Section 38-175a-6 (d) of the Regulations of Connecticut State Agencies provides in pertinent part: “limits of liability. The limit of the insurer’s liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of section 14-112 of the general statutes, except that the policy may provide for the reduction of limits to the extent that damages have been (1) paid by or on behalf of any person responsible for the injury, (2) paid or are payable under any workers’ compensation or disability benefits law . . . .”

       “ ‘[Sjtatutory provisions relating expressly to uninsured motorist coverage apply also to underinsured motorists.’ ” Nationwide Mutual Ins. Co. v. Pasion, 219 Conn. 764, 766 n.3, 594 A.2d 468 (1991), quoting American Motorists Ins. Co. v. Gould, 213 Conn. 625, 628, 569 A.2d 1105 (1990).

       The plaintiff made no claim that § 38-175a-6 (d) of the Regulations of Connecticut State Agencies conflicts with General Statutes § 38a-334 (formerly § 38-175a). See Kelly v. Figueiredo, 223 Conn. 31, 36-37, 610 A.2d 1296 (1992).

       Section 38-175a-3 of the Regulations of Connecticut State Agencies provides: “The provisions herein required need not be stated in the language or form of these regulations, but the coverage afforded shall be of equal or greater benefit to the insured. Policies affording a coverage to which these regulations apply shall be deemed to afford insurance under such coverage at least equal to that required by these' regulations.”

       At oral argument, in response to inquiry by the court, the plaintiff was unable to offer any other factual scenario that, in his view, would fit the language of the statute and the regulation.

       General Statutes § 38a-334 (formerly § 38-175a) provides in pertinent part: “(a) The insurance commissioner shall adopt regulations with respect to minimum provisions to be included in automobile liability insurance policies issued after the effective date of such regulations and covering private passenger motor vehicles .... Such regulations shall relate to the insuring agreements, exclusions, conditions and other terms applicable to the bodily injury liability, property damage liability, medical payments and uninsured motorists coverages under such policies, shall make mandatory the inclusion of bodily injury liability, property damage liability and uninsured motorists coverages . . . .”

        Roy v. Centennial Ins. Co., 171 Conn. 463, 370 A.2d 1011 (1976) (in view of the broad discretion vested by statute in the insurance commissioner for the formulation of regulations, § 38-175a-6 (d) of the Regulations of Connecticut State Agencies was within the scope of his authority to promulgate).

       The New Jersey Superior Court stated that the majority of jurisdictions in the United States considers automobile insurance policy provisions that give an underinsured motorist carrier a credit for workers’ compensation awards as void against public policy. Sweeney v. Hartford Accident & Indemnity Co., 136 N.J. Super. 591, 594, 347 A.2d 380 (1975).

       General Statutes § 31-293 (a) provides in pertinent part: “In any case in which an employee brings an action against a third party in accordance with the provisions of this section, and the employer is a party defendant in such action, the employer may join as a party plaintiff in such action. . . . If such employer and employee join as parties plaintiff in such action and any damages are recovered, such damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of such recovery, after the deduction of reasonable and necessary expenditures, including attorneys’ fees, incurred by the employee in effecting such recovery. ... No compromise with such third person by either employer or employee shall be binding upon or affect'the rights of the other, unless assented to by him. For the purposes of this section the employer’s claim shall consist of (1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of such injury.” Subsequent to the time of the award in question here, this statute was amended in ways not relevant to this opinion.

       See footnote 4, supra.

       The majority of the arbitration panel multiplied the plaintiff’s weekly compensation rate of $640.41 times 104 weeks (20 percent of 520 weeks). The plaintiff had agreed in his previous two successful workers’ compensation claims for lost wages and for scarring that $640.41 accurately represented his weekly compensation rate.

       We recognize that the arbitrators in this case had before them and fully reported to the trial court all of the values necessary for the calculation of the specific indemnity. Another case may involve fewer stipulations or less complete findings put on the record by arbitrators. See Gurliacci v. Mayer, 218 Conn. 531, 567, 590 A.2d 914 (1991).