text:
    STATE OF CONNECTICUT ET AL. v. STATE EMPLOYEES’ REVIEW BOARD ET AL.
    (15358)
    Callahan, C. J., and Berdon, Norcott, Palmer and Peters, Js.
    Argued November 6, 1996
    officially released January 7, 1997

      Laurie Adler, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Overend and Maria C. Rodriguez, assistant attorneys general, for the appellants (plaintiffs).

      David A. Zipfel, for the appellee (defendant Daniel Cawley).
   CALLAHAN, C. J.

The issue in this appeal is whether the Personnel Act, General Statutes §§ 5-193 through 5-269, grants the state employees’ review board (board) jurisdiction to address misclassification claims in layoff appeals. The plaintiffs, the state of Connecticut, the state department of public safety (public safety) and the state department of administrative services (administrative services), appeal from the judgment of the trial court dismissing their appeal and concluding that the board possesses jurisdiction to entertain misclassification claims. We reverse the judgment of the trial court.

The factual circumstances were related in an earlier opinion of this court in State v. State Employees' Review Board, 231 Conn. 391, 650 A.2d 158 (1994). We will reiterate only those facts necessary for the proper consideration of the present appeal. In May, 1986, public safety hired the defendant, Daniel Cawley, as a data processing manager 3 (DPM 3). The job description for a DPM 3 required that the worker “direct a ‘major’ data processing installation and supervise an assigned staff of managers, supervisors, technical and clerical personnel.” Id., 394 n.3. When he was initially hired, the defendant supervised thirty to thirty-four employees and all the activities of public safety’s data processing unit. Over the next several years, the defendant’s supervisory responsibilities were gradually diminished. By the spring of 1990, he supervised only eighteen to twenty employees. Effective November 30,1990, the defendant was relieved of all supervisory responsibilities and was reassigned to special projects that he carried on largely by himself. The defendant’s supervisory responsibilities were transferred to a data processing manager 1 (DPM 1), a position of lower rank and salary than DPM 3. This shift in duties was intended to be, and became in fact, permanent.

In early 1990, Deborah Fazzina, a classification specialist employed by administrative services, advised public safety to make changes in its data processing unit including abolishing or reclassifying the DPM 3 position to a nonmanagerial position once it was vacated. When the defendant was permanently reassigned to performing nonsupervisory tasks in November, 1990, public safety did not review the classification of his position, but instead allowed the defendant’s DPM 3 classification to continue. The defendant also continued to be paid as a DPM 3 until public safety laid him off on May 31, 1991. At the time of his layoff, the defendant was the only public safety employee classified as a DPM 3.

The defendant appealed his layoff to the board pursuant to General Statutes § 5-202, seeking a determination that the layoff was not in compliance with General Statutes § 5-241, which requires that the least senior employee within a position classification slated for layoff be laid off first. He contended that his reassignment should have led administrative services to reclassify his position as a DPM 1 or a lesser classification, and that, because of his seniority over other DPM 1 and lesser classified employees in public safety, public safety should have retained him and laid off other employees first.

The board concluded that because public safety had not reviewed the defendant’s position pursuant to administrative services’ recommendation, the board could not determine either his proper classification or his relative seniority within that classification. Therefore, the board concluded that the layoff was improper as “arbitrary or taken without reasonable cause.” The board ordered public safety, with the assistance of administrative services, to review the classification of the defendant’s position as of the time he was assigned new duties, and, on the basis of such duties, to determine the appropriate classification of the position. The board’s order directed public safety, upon completion of the classification review and reclassification of the defendant, if that should be appropriate, to follow its normal procedures in determining which positions should have been abolished and which employees occupying those positions should have been laid off. The board ordered that if the result of the analysis indicated that the defendant had been improperly laid off, he was to be reinstated and awarded appropriate back pay, seniority and other benefits. The board did not retain jurisdiction over the dispute.

The plaintiffs appealed the board’s decision to the trial court pursuant to General Statutes §§ 5-202 (T) and 4-183. The trial court concluded that the board’s decision was not a final judgment within the meaning of § 4-183 and, therefore, was not appealable. It did, however, sustain the appeal in part, and ordered a modification of the board’s decision, requiring the board to retain jurisdiction over the defendant’s claim. We reversed the judgment of the trial court in State v. State Employees’ Review Board, supra, 231 Conn. 391, concluding that the board’s decision constituted an appealable final judgment, and we remanded the case for further proceedings.

On remand, the trial court concluded that the board’s decision was within the scope of its statutory authority and dismissed the plaintiffs’ appeal. The court agreed with the board’s conclusion that it need not accept the state’s classification of a position, but may properly order a state agency to review the classification of a position before ruling on whether a layoff was in accord with § 5-241. The plaintiffs 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).

The plaintiffs argue that the board lacked jurisdiction over the present case because the statutory framework does not permit the board to address classification issues in layoff appeals. The plaintiffs assert that General Statutes § 5-200 (n), which does not contemplate board review, constitutes the sole statutory avenue for employees to have the classifications of their positions reviewed. Additionally, the plaintiffs assert that General Statutes § 5-202 (f), as amended by Public Acts 1994, No. 94-194 (P.A. 94-194), specifically excludes classification issues from the board’s jurisdiction. They contend that P.A. 94-194, which was enacted after the present case arose, was a clarifying amendment that should be applied retroactively to causes of action arising before its effective date, and that its enactment serves to confirm their argument that the board never had jurisdiction over classification issues. The plaintiffs argue that the board should have denied the defendant’s grievance pursuant to § 5-241 (a) because the defendant was the only, and hence the least, senior public safety employee in the DPM 3 classification.

We agree with the plaintiffs that P.A. 94-194 was an amendment that served to clarify § 5-202 (f) and, as such, should be applied retroactively. We therefore conclude that the board lacked jurisdiction to entertain the defendant’s misclassification claim, and, a fortiori, lacked jurisdiction to order administrative services and public safety to review the classification of the defendant’s position.

We first note the scope of our review of the board’s decision. “Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purposes. . . . [A]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts.” (Citations omitted; internal quotation marks omitted.) Dept. of Administrative Services v. Employees’ Review Board, 226 Conn. 670, 678, 628 A.2d 957 (1993). Cases that present pure questions of law, however, invoke “a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion.” (Internal quotation marks omitted.) Id.; see also Lieberman v. State Board of Labor Relations, 216 Conn. 253, 263, 579 A.2d 505 (1990). “Furthermore, when a state agency’s determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference.” Dept. of Administrative Services v. Employees’ Review Board, supra, 678-79; see Lieberman v. State Board of Labor Relations, supra, 263. The board’s determination that § 5-202 granted it jurisdiction to entertain misclassification claims has not been subject to judicial review and is apure question of law involving the inteipretation of the relevant statutory provisions. Consequently, we afford the board no special deference in our review of its decision.

We begin by sketching the statutory landscape pertinent to employee appeals of layoff decisions to the board. General Statutes § 5-201 establishes the board and empowers it to hear and act upon appeals filed in accordance with § 5-202. Section 5-202 (e) affords employees who have been laid off for economic reasons the right to appeal the determination to the board. Section 5-202 (e) provides that such an appeal may be based only on the ground that the order of layoff was not determined in accordance with the provisions of § 5-241. Section 5-241 (a) establishes a limited system of seniority-based bumping and provides that no employee in a particular classification can be laid off for economic reasons if there are other employees in the same agency and classification, performing comparable duties, who possess less seniority. Section 5-202 (f) sets forth a list of “matters” that are not appealable to the board. In 1994, after the defendant had brought this appeal, the General Assembly amended § 5-202 (f), adding “classification of a position” to that list.

The statutes allocate to administrative services the responsibility regarding classification of positions. General Statutes § 5-200 charges administrative services with the responsibility for establishing and maintaining classes of positions for all state employees holding positions in the classified service. Section 5-200 (b) provides that administrative services “shall review position classifications in accordance with subsection (c) of section 5-206.” General Statutes § 5-206 (c) provides that administrative services “periodically shall review the work performed by employees in the classified service and shall issue such orders as are necessary to have such employees assigned to work in accordance with the classifications of their positions or to have their classifications changed to comply with their work . . . Finally, § 5-200 (n) allows employees to raise issues concerning the classification of their positions by submitting written data and arguments to the commissioner of administrative services, who may hold a hearing if necessary. On its face, § 5-200 (n) affords a remedy to an employee who claims his position has been misclassified.

With the above statutory framework in mind, we proceed to what we conclude to be the dispositive issue in this appeal — the General Assembly’s intention in enacting P.A. 94-194, which added to the list of “matters” that cannot be appealed to the board “[a]ll matters involving . . . classification of a position . . . .” Pursuant to the current version of § 5-202 (f), as it incorporates P.A. 94-194, an employee in the defendant’s position cannot raise issues concerning the classification of his position in an appeal to the board. Because the board can act only upon appeals filed in accordance with § 5-202, and § 5-202 (f) prohibits employees from appealing matters of classification, the board lacks jurisdiction to entertain an appeal by an employee, such as the defendant, who argues that his position has been misclassified. Under the existing statutory framework, the only recourse for an employee who believes that his position has been misclassified is an appeal to the commissioner of administrative services pursuant to § 5-200 (n). The defendant filed this appeal with the board prior to the legislature’s enactment of P.A. 94-194 and argues that P.A. 94-194 does not apply to his case. The plaintiffs disagree. The dispositive issue, therefore, is whether the General Assembly’s passage of P.A. 94-194 signaled a change in the law, or merely clarified the existing law.

We presume that, “in enacting a statute, the legislature intended a change in existing law. . . . This presumption, like any other, may be rebutted by contrary evidence of the legislative intent in the particular case. An amendment which in effect construes and clarifies a prior statute must be accepted as the legislative declaration of the meaning of the original act.” (Internal quotation marks omitted.) Kluttz v. Howard, 228 Conn. 401, 409, 636 A.2d 816 (1994); see Shelton v. Commissioner of Environmental Protection, 193 Conn. 506, 513-14, 479 A.2d 208 (1984). An amendment that is intended to clarify the original intent of an earlier statute “necessarily has retroactive effect.” State v. Magnano, 204 Conn. 259, 284, 528 A.2d 760 (1987); see Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 540, 489 A.2d 363 (1985).

“To determine whether an act should be characterized as clarifying legislation, we look to the legislative histoiy to determine the legislative intent.” (Internal quotation marks omitted.) Reliance Ins. Co. v. American Casualty Ins. Co. of Reading, Pennsylvania, 238 Conn. 285, 290, 679 A.2d 925 (1996). “To determine legislative intent, it is often useful to examine the title of a proposed bill . . . and the purpose the legislature intended to accomplish by its enactment. ...” (Internal quotation marks omitted.) State v. Burns, 236 Conn. 18, 25, 670 A.2d 851 (1996), quoting State v. Mattioli, 210 Conn. 573, 577-78, 556 A.2d 584 (1989). “ ‘The title of legislation when it is acted upon by the legislature is significant and often a valuable aid to construction . . . Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 405, 528 A.2d 805 (1987).

The history of P.A. 94-194 demonstrates that the legislature intended the 1994 amendment of § 5-202 (f) to be a clarification of the existing law rather than a change in the law. The title of the bill that became P.A. 94-194 was: “An Act Clarifying the Types of Matters Appeal-able by State Employees To the Employees’ Review Board and Extending the Time for Appeals To the Board.” (Emphasis added.) The title was read by the clerks of both the House of Representatives and the Senate on the floor of each chamber prior to the enactment of the legislation. 37 H.R. Proc., Pt. 21, 1994 Sess., pp. 7759-64; 37 S. Proc., Pt. 7,1994 Sess., pp. 2199-2201, 2223-24. In discussing the act on the floor of the House of Representatives, Representative Michael P. Lawlor stated: “By way of explanation, this relates only to the matters which State employees who are not covered by collective bargaining agreements, the types of matters they can bring to the Employees’ Review Board. It . . . prohibits the Board from hearing grievances over position classification . . . .” 37 H.R. Proc., Pt. 21,1994 Sess., p. 7762. That the title of P.A. 94-194 specifically denoted the act as a clarifying act and the designation was brought to the attention of the members of both the House and Senate before passage strongly suggests that the General Assembly enacted P.A. 94-194 to clarify § 5-202 (f), and not effectuate a change in the law.

The timing of the legislature’s enactment of P.A. 94-194 further supports our construction of the act as a clarifying amendment. The board issued its decision in this case on April 25, 1992. The trial court rendered its initial decision on October 13, 1993. Public Act 94-194 was introduced in the February legislative session of 1994, only four months after the trial court’s decision. Our decision reversing and remanding the case to the trial court was announced on December 6, 1994. A search of the published and unpublished trial court opinions reveals that the trial court’s initial opinion in this case on October 13, 1993, appears to be the first trial court opinion to call attention to the issue of whether the board has jurisdiction to entertain misclassification claims in layoff appeals. Although in that opinion the trial court did not decide the issues concerning the board’s jurisdiction, but rather focused on the final judgment issue we addressed in State v. State Employees’ Review Board, supra, 231 Conn. 391, the court nonetheless set forth the factual and procedural circumstances of the case and mentioned the “statutory construction issues that [the plaintiffs] prematurely seek to have adjudicated in this proceeding.” State v. State Employees’ Review Board, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV92703246 (October 13, 1993). Moreover, two trial courts in 1992 addressed issues concerning the board’s jurisdiction. In State v. Employees’ Review Board, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 701604 (April 27, 1992), and State v. Employees’ Review Board, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 701585 (May 29, 1992), the courts addressed the issue of whether § 5-202 (f) excluded from the board’s jurisdiction all claims involving compensation. In both cases, the courts concluded, contrary to the board, that § 5-202 (f) excluded from the board’s jurisdiction the compensation claims pressed by the employees in those cases.

In the past, this court has accorded weight to prompt legislative amendments made in response to judicial pronouncements concerning statutory law. “If an amendment is enacted soon after controversies arise regarding the interpretation of the prior act, ‘ “it is logical to regard the amendment as a legislative interpretation of the original act . . . ” Turner v. Turner, 219 Conn. 703, 717, 595 A.2d 297 (1991); State v. Blasko, 202 Conn. 541, 558, 522 A.2d 753 (1987); see also 1A J. Sutherland, Statutory Construction (4th Ed. Sands 1985) § 22.31. “The legislature has the power to make evident to us that it never intended to provide a litigant with the rights that we had previously interpreted a statute to confer.” State v. Blasko, supra, 558.

The activity in the trial courts prior to 1994 concerning the scope of the board’s jurisdiction alerted the legislature to a “controversy” regarding the proper interpretation of § 5-202 (f). The legislature’s prompt proposal of P.A. 94-194 following the emergence of this controversy is persuasive evidence that the act was meant to clarify § 5-202 (f), not change it. Because we conclude that P.A. 94-194 was a clarifying amendment, it “must be accepted as the legislative declaration of the meaning of the original act.” (Internal quotation marks omitted.) Kluttz v. Howard, supra, 228 Conn. 409. Accordingly, we conclude that the board did not have jurisdiction to entertain the defendant’s misclassification argument, and, a fortiori, that the board did not have the power to order administrative services and public safety to review the classification of the defendant’s position.

The retroactive nature of clarifying legislation has limits, however, and “must not operate in a manner that would unjustly abrogate vested rights.” (Internal quotation marks omitted.) State v. Magnano, supra, 204 Conn. 284. “A vested right is one that equates to legal or equitable title to the present or future enjoyment; of property, or to the present or future enforcement of a demand, or a legal exception from a demand made by another.” Family Financial Services, Inc. v. Spencer, 41 Conn. App. 754, 766, 677 A.2d 479 (1996), citing Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 71, 441 A.2d 68 (1981). We conclude that the defendant has no vested right that would enable him to argue, in a layoff appeal to the board, that his position was misclassified. The retroactive application of P.A. 94-194, therefore, does not abrogate any vested rights.

Moreover, an analysis of §§ 5-200, 5-202 and 5-241, conducted in light of fundamental rules of statutory construction, leads to the conclusion that classification issues were not and are not appealable to the board, and that P.A. 94-194 merely clarified the existing law. “It is a well-settled principle of [statutory] construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling. . . . We are obligated, furthermore, to read statutes together when they relate to the same subject matter.” (Citations omitted; internal quotation marks omitted.) Concerned Citizens of Sterling, Inc. v. Connecticut Siting Council, 215 Conn. 474, 482-83, 576 A.2d 510 (1990). “This is because of the presumption that the legislature intended to create a harmonious body of law.” Dept. of Administrative Services v. Employees’ Review Board, supra, 226 Conn. 679. Also, “[a] statute which provides that a thing shall be done in a certain way carries with it an implied prohibition against doing that thing in any other way.” (Internal quotation marks omitted.) Chairman, Criminal Justice Commission v. Freedom of Information Commission, 217 Conn. 193, 200, 585 A.2d 96 (1991). Finally, “ [elementary rules of statutory construction require the presumption that the legislature did not intend to enact superfluous legislation.” State v. Ellis, 197 Conn. 436, 472-73, 497 A.2d 974 (1985), on appeal after remand, State v. Paradise, 213 Conn. 388, 567 A.2d 1221 (1990).

By allocating responsibility for the classification system to administrative services, and providing employees with a specific avenue by which to appeal classification issues to administrative services, the legislature expressed its intention that administrative services would constitute the controlling authority over such issues. Reading the statutes together, as we must, leads to the conclusion that the legislature always intended that § 5-200 (n) be the only medium through which an employee can raise the issue of classification. We must presume that, by providing a specific procedure to raise and resolve classification issues in § 5-200 (n), the legislature intended state employees to utilize that procedure, rather than some other procedure. See Chairman, Criminal Justice Commission v. Freedom of Information Commission, supra, 217 Conn. 200; Concerned Citizens of Sterling, Inc. v. Connecticut Siting Council, supra, 215 Conn. 482-83. In addition, our construction of the statutes avoids rendering § 5-200 (n) superfluous in situations in which an employee’s position should properly be reclassified to a lower classification. If we were to conclude that the statutes allow employees to raise classification issues in layoff appeals, no incentive would exist to compel employees in such situations to utilize the more specific and express procedures of § 5-200 (n). Indeed, an employee, such as the defendant, whose position might properly have been reclassified to a lower classification with a lower salary, would have no reason to utilize § 5-200 (n) to obtain reclassification, and a corresponding pay cut, if that employee could simply wait to challenge the classification in a layoff appeal to the board.

At oral argument, counsel for the defendant repeatedly asserted this was not a classification case but was a layoff case in which the board was prevented from performing its statutory duty because of administrative services’ failure to classify the defendant’s position properly. The defendant’s argument focuses on public safety’s transfer of the defendant’s day-to-day duties to a DPM 1 on November 30, 1990. According to the defendant, public safety’s shifting of his duties amounted to a de facto reclassification of the defendant’s position, notwithstanding the fact that administrative services continued to classify the defendant’s position as a DPM 3. The defendant argues that he did not fall into any classification following November 30, 1990, because his prior day-to-day duties had been shifted to a DPM 1 and he was permanently reassigned to performing special projects. Because he did not fall into any classification, the defendant contends, the board was unable to perform its § 5-241 (a) function, which is to assess whether the defendant was the least senior employee in his classification. We find this argument circuitous and unpersuasive.

In essence, the defendant asked the board, and now asks this court, to look beyond the classification of the defendant’s position listed in administrative services’ records and determine whether that classification was consistent with the duties the defendant was performing. The board should have declined the defendant’s invitation to do so. The legislature granted authority over the classification of positions to administrative services, not to individual state agencies. Sections 5-200 (b) and 5-206 (c) charge administrative services with the responsibility of periodically evaluating positions to ensure that they are classified properly. No statutory authority exists to allow other individual state agencies to reclassify positions within the individual agency, de facto or otheiwise. Administrative services’ classification of a position controls unless and until administrative services reclassifies the position. Sections 5-200 (b) and 5-206 (c) do not require, moreover, that administrative services’ classification of a position be consistent at all times with the specific duties that the employee holding that position is performing. Such a requirement would be impossible to enforce in light of the shifting of duties that normally occurs in the modern workplace. Section 5-200 (n) exists for that very reason and provides employees a means for compelling administrative services to review their position classifications to ensure proper classification if they believe they are improperly or unjustly classified. The defendant’s argument, taken to its logical extreme, would require administrative services to review the classification of every position slated for layoff prior to the actual layoff action to ensure that the classification was proper. In addition, the defendant’s construction of the statutes would shift classification issues away from administrative services, requiring the board to make determinations in every layoff case as to whether an employee’s position was properly classified. The statutes, however, do not contemplate having the board second-guess administrative services’ determinations concerning classification issues. As previously noted, an employee’s proper avenue of appeal for misclassification is § 5-200 (n). If the employee is aggrieved by the decision of administrative services, he or she may appeal that decision to the Superior Court pursuant to § 4-183. In any event, the road to judicial review of classification issues goes through administrative services, not the board, because the legislature conferred authority over the classification system on administrative services.

The judgment is reversed and the case is remanded with direction to render judgment sustaining the plaintiffs’ appeal.

In this opinion the other justices concurred.

       References to the defendant in this opinion axe to Cawley, the state employee who was laid off by public safety. The board, which was also served as a defendant in this action, took no position in the trial court phases of this case and submitted no brief in this appeal.

       The maximum salary for a DPM 3 was $81,320.03. The maximum salary for a DPM 1 was $60,758.15. The maximum salary for a nonmanagerial data processing specialist was less than $60,758.15.

       General Statutes § 5-202 currently provides in relevant part: “Appeal by employee, (a) Any employee who is not included in any collective bargaining unit of state employees and who has achieved a permanent appointment as defined in subsection (r) of sed ion 5-196 may appeal to the Employees’ Review Board if he or she receives an unsatisfactory performance evaluation or is demoted, suspended or dismissed, or is aggrieved as a result of alleged discrimination, or unsafe or unhealthy working conditions or violations involving the interpretation and application of a specific state personnel statu!e, regulation or rule. Such employee must have complied with preliminary review procedures, except as otherwise provided in subsection (k) of this section. Such an appeal shall be submitted to the board within thirty days of the completion of the final level of the preliminary review procedure, provided the first level of the procedure shall have been initiated no later than thirty calendar days from the date of the alleged violation, except that in cases of dismissal, demotion or suspension the grievance must be submitted directly to the third level of the procedure and shall have been initiated no later than thirty calendar days from the effective date of such action.
      “(b) Upon receiving an appeal, the board shall assign a time and place for a hearing and shall give notice thereof to the parties concerned. The hearing panel shall not be bound by technical rules of evidence prevailing in the courts. If, after hearing, a majority of the hearing panel determines that the action appealed from was arbitrary or taken without reasonable cause, the appeal shall be sustained; otherwise, the appeal shall be denied. The hearing panel shall have the power to direct appropriate remedial action and shall do so after taking into consideration just and equitable relief to the employee and the best interests and effectiveness of the state service. The hearing panel shall render a decision within sixty calendar days from the date of the conclusion of the hearing. . . .
      “(e) An employee laid off or dismissed by reason of economy, lack of work, insufficient appropriation, change in departmental organization or abolition of position may file an appeal with the board only on the grounds that the order of layoff or dismissal has not been determined in accordance with the provisions of section 5-241, provided such employee has initiated the third level of the preliminary review procedure within thirty calendar days of the effective date of such layoff or dismissal.
      “(f) All matters involving examination, including application rejection, type of examination or results, compensation for class or classes, establishment of a netv class or classes, classification of a. position, occupational group or career progression level, compliance with health and safety standards and the Connecticut Occupational Safety and Health Act or alleged discrimination in cases where an appeal has been filed with the Commission on Human Rights and Opportunities, shall not be appealable under this section. . . .

      “(J) Either the commissioner of administrative services or any employee aggrieved by a decision of the Employees’ Review Board may appeal therefrom in accordance with section 4-183. The board may intervene as a party in any appeal of its decision. Any employee who prevails in a decision of the Employees’ Review Board shall be entitled to recover court costs and reasonable attorney’s fees if such decision is appealed by the commissioner of administrative services and affirmed by the court in such appeal.” (Emphasis added.)

       General Statutes § 5-241 provides: “Order of layoffs. Notice. Placement on reemployment list, (a) No employee in the classified service who has been performing his duties in a satisfactory manner as shown by the records of the department, agency or institution in which he has been employed shall be dismissed or laid off from his position because of lack of work, economy, insufficient appropriation, change in departmental organization, abolition of position or any cause other than disability, delinquency, incompetency, misconduct or neglect of duty, if any other employee in the same classification performing comparable duties with less state service is to be retained in the same department, agency or institution. For the purposes of this section, the employment security division may, at the discretion of the labor commissioner, be excluded from the remainder of the labor department and deemed to be a separate agency.
      “(b) An appointing authority desiring to lay off an employee shall give him not less than two weeks’ notice in writing, stating the reason for such action, except that in the case of an employee, as defined in section 5-196, who is not covered by a collective bargaining agreement and who has been in the classified service for (1) at least five but not more than ten years, the appointing authority shall provide at least four weeks’ notice, (2) more than ten but not more than fifteen years, the appointing authority shall provide at least six weeks’ notice, (3) more than fifteen years, the appointing authority shall provide at least eight weeks’ notice. A copy of such notice shall immediately be forwarded to the commissioner of administrative services. The commissioner shall arrange to have the employee transferred to a vacancy in the same or a comparable class or in any other position the employee is qualified to fill in any department, agency or institution. If there is no vacancy available or the employee refuses to accept the transfer, the commissioner shall cause the name of such employee to be placed on the reemployment list for the appropriate class for which he has attained permanent status, or has the ability to qualify, as determined by the commissioner. During the period he is entitled to remain on the reemployment list, such an employee shall be rehired in the classification from which he was laid off or for which he is qualified, as vacancies occur, in the reverse order of layoff.”

       General Statutes § 5-201 provides in relevant part: “Employees’ Review Board, (a) There shall be an Employees’ Review Board consisting of seven members, at least one of whom shall be an attorney with experience in administrative or labor law. . . .
      “(b) The board shall hear and act upon appeals filed with it in accordance with section 5-202. The board, or any three of its members designated by the board, may serve as a hearing panel and render a decision. ...”

       See footnote 3.

       See footnote 4.

       See footnote 3.

       Prior to the 1994 amendment, General Statutes (Rev. to 1993) § 5-202 (f) had provided: “All matters involving examination, including application rejection, type of examination or results, compensation for class or classes or duties, establishment of a new class or classes, occupational group or career progression level, compliance with health and safety standards and the Connecticut Occupational Safety and Health Act or alleged discrimination in cases where an appeal has been filed with the human rights commission, shall not be appealable under this section.” (Emphasis added.)

       General Statutes § 5-200 provides in relevant part: “© The commissioner shall establish classes of positions, occupational groups and career progression levels for all state employees holding positions in the classified service.
      “(m) The commissioner shall maintain current compensation schedules pertaining to all employees specified in subsection (k) of this section and a comprehensive plan of position classifications pertaining to all employees specified in subsection (Í) of this section. . .

       General Statutes § 5-206 (e) provides: “The commissioner of administrative services periodically shall review the work performed by employees in the classified service and shall issue such orders as are necessary to have such employees assigned to work in accordance with the classifications of Uioir positions or to have their classifications changed to comply with their work, provided any employee, whose classification, status or compensation is affected, shall be given reasonable opportunity to be heard prior to the issuance of any such order.”

       General Statutes § 5-200 (n) provides: “Any interested employee, his representative or any appointing authority may submit to the commissioner written data, views, arguments or request for a, hearing in regard to specified position classifications or allocation of a class of positions to the co mpensa tio n schedule. Within two months after the commissioner shall have received such data, views or arguments or shall have held any requested hearing, he shall forward to such employee, representative or appointing authority his written decision thereon, together with all written materials submitted to him by the interested employee or his representative and such other information as he considers appropriate.” (Emphasis added.)

       See footnote 12.

       We did not discuss the legislature’s enactment of P.A. 94-194 in State v. State Employees’ Review Board, supra, 231 Conn. 391, because we did not reach the merits of the case in that opinion.

       Professor Howard Sacks, a member of the board and author of the board’s opinion in this case, testified to the committee on labor and public employees in support of P.A. 94-194. Sacks’ testimony supports our conclusion that P.A. 94-194 was a clarifying amendment in response to trial court confusion concerning the board’s jurisdiction. Sacks testified in a prepared written statement as follows:
      “Presently, Section [5-]202 (f), excluding several types of cases from the grant of jurisdiction conferred by the general provision in § [5-]202 (a), excludes some kinds of cases involving compensation. The Board believes that other types of compensation cases are within our jurisdiction, and we have occasionally given relief in these cases. However, lower courts have disagreed with us, and have set aside our decisions. We seek, a clarifying amendment, as detailed below.

      * ** *
      “The present statute, CGS § 5-202 (f), exempts from Board jurisdiction ‘matters involving . . . compensation for class or classes or duties.’ Although the legislature could have simply exempted matters involving compensation, it did not. It only exempted particular types of compensation issues. Nonetheless, lower courts have read the statute to wipe out Board power over all compensation issues. This appears to be a misreading of the legislature’s intentions.

      “To remedy this situation, § 5-202 (f) should be amended so as to delete ‘[or] duties.’ This modest change would enable the Board to handle cases of the type described above.

        “On the other hand, the Board does not wish to tinker■ with issues of compensation for a class of positions, or the classification, and hence, compensation, of a particular position within an established class. There is already a remedy for alleged misclassification of a position; see Conn. Gen. Stat. §5-200 (p) [currently §5-200 (n)[. Accordingly, the present language exempting from Board jurisdiction compensation for a class should be retained. Moreover, the section should be amended so as to clearly exempt from our jurisdiction ‘classification of a position.’ . . .

        “If these two changes were made, the Board could deal with appropriate cases of unlawful State action involving compensation, while not interfering with necessary State discretion on such matters as the appropriate classification of a particular position. . . .” (Emphasis added.) Conn. Joint Standing Committee Hearings, Labor and Public Employees, Pt. 1, 1994 Sess., pp. 292-93, testimony of Professor Howard Sacks, member, Connecticut state employees’ review board.
      The legislature removed the phrase “or duties” from § 5-202 (f) in P.A. 94-194, thus clarifying the jurisdictional issue concerning compensation cases that had been addressed by the trial courts in 1992.

       We rely on the same rules of statutory construction discussed above to dispose of the defendant’s argument that § 5-202 (b) confers upon the board the power to remedy all employer practices that it concludes are “arbitrary or taken without reasonable cause.” Section 5-202 (b) provides, in relevant part, that if “a majority of the hearing panel [of the board] determines that the action appealed from was arbitrary or taken without reasonable cause, the appeal shall be sustained; otherwise, the appeal shall be denied.” If we were to adopt the defendant’s broad construction of § 5-202 (b), the more specific provisions of § 5-202 (e) and (f) dealing with appeals by laid off employees would be rendered meaningless, because the board would then possess the power to sustain a laid off employee’s appeal without regard for the specific dictate in § 5-202 (e) that such appeals may only be based on noncompliance with § 5-241. We therefore find unpersuasive the defendant’s argument that § 5-202 (b) granted the board the power to sustain any appeal where 1he board concludes that the employer action was arbitrary or taken without reasonable cause.

       See footnote 19.

       In support of this request, the defendant cites Chotkowski v. Connecticut Personnel Appeal Board, 176 Conn. 1, 404 A.2d 868 (1978), for the proposition that this court can and will “go beyond the mere assertion of the State and explore the true facts.” The defendant’s reliance on Chotkowski to support the preceding proposition is misplaced. Although in Chotkowski we concluded that the state employee in that case was a “permanent employee” in the classified service, a conclusion that ran contrary to an erroneous designation of his position in the state personnel records, we based that conclusion on a separate statutory section providing that all offices or positions in the state service were positions in the classified service unless the position was contained in a list of positions exempted from the classified service. Id., 4. Since the employee’s position was not listed among the exemptions from the classified service, we concluded that his position was in the classified service, notwithstanding the mistaken designation in the state personnel records. Id. In the present case, the defendant cites no separate statutory authority upon which we may base a conclusion that the actual classification of the defendant’s position was different than the classification noted in administrative services’ records. The proper procedure for the defendant to obtain judicial review of administrative services’ classification of his position was a § 4-183 appeal from an administrative services’ determination of a § 5-200 (n) appeal. See footnote 12.

       Indeed, in the present case, the defendant had a six month period — from November 30, 1990, to May 31, 1991 — during which he could have utilized the provisions of § 5-200 (n) to compel administrative services to review his position classification. During this six month period, the defendant received a salary commensurate with the DPM 3 classification, even though the nonmanagerial duties he was performing were not consistent with the DPM 3 classification. The maximum salary for a nonmanagerial data processing specialist was at least $20,561.88 less than the salary of a DPM 3. See footnote 2. The defendant thus was forced to choose whether to continue to enjoy the salary of a DPM 3, but remain vulnerable to a layoff, or to seek a reclassification and corresponding pay cut, but be protected in the event of a layoff. The defendant chose to accept the higher salary and corresponding risk of layoff.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    CHARLES HALLAS ET AL. v. BOEHMKE AND DOBOSZ, INC., ET AL. CHARLES HALLAS ET AL. v. SCOTTSDALE INSURANCE COMPANY
    (15489)
    (15490)
    Callahan, C. J., and Borden, Berdon, McDonald and Peters, Js.

      Argued October 31, 1996
    officially released January 14, 1997

      James J. Carroll, for the appellants-appellees in Docket No. 15489 (defendants in the first case).

      Kevin A. Coles, for the appellees-appellants in Docket No. 15489 and the appellants in Docket No. 15490 (plaintiffs in both cases).

      Brian M. Gildea, with whom, on the brief, was Robin Stevens, for the appellee in Docket No. 15490 (defendant in the second case).

      Joan M. Gilbride, pro hac vice, and Philip J. Walsh filed a brief for the appellee in Docket No. 15490 (third party defendant Continental Agency of Connecticut, Inc.).
   PETERS, J.

In these consolidated appeals, the issues arise out of the negligent failure of an insurance broker to include the names of mortgagees on a property owner’s application for fire insurance. The dispositive issues are the extent of liability incurred by the negligent broker and the extent to which the insurer, on agency principles, is liable for the broker’s negligence.

In the first case, Docket No. 15489, the plaintiffs, Charles Hallas, Patapios Zervos and Henry Nyland brought an action against the defendants, Boehmke and Dobosz, Inc., and Walter Dobosz (Dobosz), alleging that Dobosz negligently had failed to provide insurance coverage for them as mortgagees of property owned by Antonio Alves, and that this negligence entitled them to damages when the insured property subsequently was destroyed by fire. The trial court directed verdicts against Zervos and Nyland for failure to offer sufficient evidence on how they, as junior mortgagees, had been damaged by Dobosz’ negligence. After a jury returned a verdict in favor of Hallas for $188,000, the parties stipulated that the amount of the recovery should be $188,200, and the trial court rendered a judgment against Dobosz in that amount.

In the second case, Docket No. 15490, the same plaintiffs brought a contract action against the defendant, Scottsdale Insurance Company (Scottsdale), in which they alleged that Scottsdale was responsible for the plaintiffs’ fire loss because Scottsdale, through its agent, Dobosz, had issued an insurance binder covering the plaintiffs. The plaintiffs claimed that the issuance of this binder obligated Scottsdale to give them written notice of the cancellation of the insurance policy that Scottsdale had subsequently issued, even though that policy did not list the plaintiffs as insureds. Scottsdale filed a third party complaint against Dobosz and Continental Agency of Connecticut, Inc. (Continental), and a counterclaim against the plaintiffs. The trial court directed a verdict in favor of Scottsdale on eight counts of the plaintiffs’ complaint and against Scottsdale on its third party complaint and counterclaim.

Dobosz appealed and Zervos and Nyland cross appealed from the judgment in Docket No. 15489; Hallas, Zervos and Nyland appealed from the judgment in Docket No. 15490. Although the appeals were properly filed in the Appellate Court, we transferred them to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We reverse, in part, the judgment of the trial court in the first case and affirm it in the second case.

I

As a result of the evidence presented in the consolidated trial of these two cases, the jury reasonably could have found the following facts. On November 3, 1989, Alves purchased for $300,000 a rooming house located at 331-335 Clinton Avenue in Bridgeport. Alves obtained most of his financing for this purchase from Lois Simpson, trustee, the wife of Hallas. Simpson secured her loan by two mortgages on the property in the amounts of $188,200 and $30,000, respectively. The vendors of the property, Zervos and Nyland, provided a third mortgage to Alves in the amount of $103,214.24. Hallas insisted that Alves obtain fire and extended coverage insurance on the property and spoke with Dobosz on the day of the closing for this purpose.

At the request of Hallas, Dobosz filled out an “Accord Commercial Insurance Application.” Because the requested coverage was excess lines insurance that, as Hallas knew, Dobosz could not write directly, Dobosz forwarded the application to Continental, an excess lines insurance broker. Continental, in turn, forwarded the application to the Glanvill Agency, which was an agent of Scottsdale; Continental was not an agent of Scottsdale. Glanvill offered to bind the coverage on behalf of Scottsdale, and so informed Continental, which notified Dobosz in turn. After confirming that Alves would accept the offer, Dobosz faxed Continental a request to bind the coverage.

From his conversation with Hallas, Dobosz understood that the beneficiaries of the insurance policy were to include not only the owner, Alves, but also the three mortgagees. Dobosz, however, failed to inform Continental, or anyone else, that any mortgagees were to be named on the Alves policy. The certificate from Continental notifying Dobosz of the issuance of coverage listed no mortgagees. Similarly, the policy issued by Scottsdale listed no mortgagees.

Nonetheless, upon receiving information that Scottsdale would provide insurance coverage, Dobosz issued a binder, effective November 3, 1989, until November 3,1990, identifying Scottsdale as the insurer and including as insured Alves as owner and the plaintiffs as mortgagees. Hallas received a copy of this binder, but Scottsdale did not receive one. The binder provided: “This binder is cancelled when replaced by a policy.” When Scottsdale subsequently delivered the Alves policy to Dobosz, Dobosz mailed it to Alves without reviewing its contents to ascertain whether it provided coverage for the mortgagees.

Alves did not have the money to pay the insurance premium. Hallas made a down payment in the amount of $2035 on Alves’ behalf; for the remainder of the premium, Dobosz assisted Alves, on November 3,1989, in entering into a financing arrangement with the Bank of Boston. The Bank of Boston undertook to pay directly to Continental that part of the premium that it had financed. The financing arrangement provided that, in the event of a default by Alves, the Bank of Boston had the right to cancel the Scottsdale policy. The Bank of Boston exercised this right when Alves failed to make his payments as they became due. On January 16, 1990, the Bank of Boston sent to Alves, Dobosz and Continental notices of its intent to cancel and, twenty days later, sent them notices of cancellation. No notices were sent to the mortgagees. On February 15, 1990, Continental mailed a copy of the cancellation notice to Glanvill, Scottsdale’s agent, and requested cancellation of the Alves policy. Scottsdale cancelled the policy and refunded the unused part of the premium relating thereto, either to Dobosz or to the Bank of Boston.

Hallas learned that the insurance had been cancelled in May or June, 1990. After a conversation with Dobosz confirming that fact, Hallas also learned that the mortgagees had never been covered by the Scottsdale policy. Upon discovering these facts, Hallas informed the other plaintiffs that the property was uninsured. Hallas also tried, unsuccessfully, to obtain reinstatement of the policy. In July, 1990, after having taken assignment of the first and second mortgages from Simpson, Hallas procured from the Mt. Hawley Insurance Company (Mt. Hawley) other insurance covering his interest in the rooming house. The other two mortgagees did not obtain insurance.

On September 24,1990, the rooming house was extensively damaged by fire. Hallas filed a claim with Mt. Hawley to recover for his loss. That claim, filed in the United States District Court for the District of Connecticut, had not been resolved at the time that these cases were tried.

II

In the first case, Docket No. 15489, which was grounded on a claim of negligence, Dobosz appeals from the jury verdict finding him liable in damages to Hallas, and Zervos and Nyland cross appeal from the directed verdict against them. Because the issues raised on the appeal and the cross appeal have no relationship to each other, we will consider them separately.

A

In his appeal, Dobosz contends that the trial court improperly: (1) failed to instruct the jury that Hallas had actual notice of the cancellation of the Scottsdale policy; (2) failed to instruct the jury that it could find Hallas equitably estopped because he had actual notice of the cancellation of the Scottsdale policy; (3) failed to instruct the jury that Hallas could not prevail on his claim of negligence without expert evidence about the duty of insurance agents to mortgagees; (4) withdrew from jury consideration exhibits documenting Hallas’ lawsuit against Mt. Hawley and documenting the terms of the Mt. Hawley insurance policy; (5) precluded Dobosz from arguing to the jury that Hallas had obtained insurance with Mt. Hawley; and (6) failed to direct a verdict in favor of Dobosz on the ground that Hallas’ knowledge of the cancellation of the Scottsdale insurance policy and his subsequent procuring of insurance from Mt. Hawley were intervening acts that superseded Dobosz’ negligence as a matter of law.

Most of these claims of impropriety flow from the same basic premise. Dobosz does not contest, in any serious fashion, that he was negligent in failing to include the mortgagees in the application for coverage from Scottsdale and in failing to check the terms of the Scottsdale policy before he mailed it to Alves. He maintains, however, that the trial court improperly impaired his ability to show that his negligence was not the proximate cause of Hallas’ losses. He argues that he was relieved of all liability because of Hallas’ actual knowledge concerning the cancellation of the coverage provided by the Scottsdale insurance policy and Hallas’ subsequent timely procurement of substitute insurance from Mt. Hawley. Hallas contends, to the contrary, that the trial court’s rulings were proper because the Mt. Hawley policy was a collateral source of reimbursement for Hallas’ losses that was independent of Dobosz’ negligence and was therefore irrelevant to the damages that Dobosz had caused Hallas to suffer. We agree with neither of these propositions and, therefore, conclude that a new trial is required.

At the outset, we reject Hallas’ argument that the proceeds of the Mt. Hawley policy fall within the collateral source doctrine and therefore cannot, under any circumstances, affect the measurement of the damages that Dobosz owes to Hallas. The record demonstrates that Hallas bought the Mt. Hawley policy only after discovering that Alves had defaulted in his financing arrangement for the Scottsdale policy and that he, Hallas, could not reinstate the Scottsdale policy because he had never been named as one of its insureds. There is nothing in the record to suggest that Hallas would have bought additional fire insurance even if the Scottsdale policy had provided him with full insurance coverage. In light of these uncontested facts, the Mt. Hawley policy is not an independent source of recovery for Hallas and is not a collateral source with respect to Dobosz’ liability as tortfeasor. See Gurliacci v. Mayer, 218 Conn. 531, 556-57, 590 A.2d 914 (1991); Rametta v. Stella, 214 Conn. 484, 489-90, 572 A.2d 978 (1990).

Dobosz’ claim for complete exoneration as a result of the outstanding Mt. Hawley policy is likewise flawed. But for Dobosz’ negligence, Hallas would have been a named mortgagee entitled to receive notice, and presumably would have received notice, of Alves’ failure to pay the insurance premium. Hallas would then have had a right to reinstate the policy upon paying the premium. General Statutes § 38a-324. The result of Dobosz’ negligence was that Hallas was unable to reinstate the policy because, by the time that Hallas learned the facts, the time for reinstatement had passed. Although Hallas was able to procure other insurance from Mt. Hawley, nothing in the record establishes a full identity in the operative provisions of the two insurance policies. One was an owner’s policy that should have listed mortgagees as additional insureds; another was a single interest policy covering only a single mortgagee. Facial inspection reveals two policies in which the premiums, the amount of the coverage and the term of insurance are all different.

In Preston v. Keith, 217 Conn. 12, 584 A.2d 439 (1991), we recently restated the rules that govern a claim that the conduct of an injured plaintiff exonerates a tortfeasor, in whole or in part, from the consequences of his negligence. In the context of a personal injury action, we held that a person “ ‘who has been injured by the negligence of another must use reasonable care to promote recovery and prevent any aggravation or increase of the injuries.’ ” Id., 15, quoting Morro v. Brockett, 109 Conn. 87, 92, 145 A. 659 (1929); see also Sette v. Dakis, 133 Conn. 55, 60, 48 A.2d 271 (1946); Lange v. Hoyt, 114 Conn. 590, 595,159 A. 575 (1932). We observed that an assessment of whether a person has done what a reasonably prudent person would be expected to do under the same circumstances falls under the rubric of the duty to mitigate damages. “[T]he theoretical foundation for the plaintiffs duty to mitigate damages is that the defendant’s negligence is not the proximate, or legal, cause of any damages that could have been avoided had the plaintiff taken reasonable steps to promote recovery and avoid aggravating the original injury.” Preston v. Keith, supra, 16. It follows that “[t]he burden of proving that the injured party could have avoided some or all of his or her damages . . . rests on the party accused of the tortious act.” (Internal quotation marks omitted.) Id., 21; see also Michaud v. Steckino, 390 A.2d 524, 531 (Me. 1978); Williams v. Masters, Mates & Pilots of America, Local No. 2, 384 Pa. 413, 422, 120 A.2d 896 (1956). Nothing in the reasoning of Preston limits its holding to cases involving personal injury.

Applying Preston to the facts of this case, we agree with the trial court that Hallas’ knowledge and conduct did not automatically relieve Dobosz of all liability, but we disagree that the Mt. Hawley policy, which the trial court withdrew from the jury, bore no relevance whatsoever to the damages proximately flowing from Dobosz’ negligence. Had Hallas failed to procure any substitute fire insurance within a reasonable time after receiving notice of the cancellation of the Scottsdale policy, Dobosz could have argued, pursuant to the principles enunciated in Preston, that Hallas had improperly failed to take steps to mitigate damages and thus had diminished his right to recover from Dobosz. By the same token, the steps that Hallas did take to mitigate his damages, i.e., his procurement of the Mt. Hawley policy, also had the potential of diminishing his right of recovery. Preston demonstrates that: (1) Hallas is not entitled to a double recovery; and (2) Dobosz has the burden of proving the extent to which the Mt. Hawley policy and its proceeds have made Hallas whole and have exonerated Dobosz. Preston v. Keith, supra, 217 Conn. 21.

We recognize that none of the parties brought Preston to the attention of the trial court and that the trial court, therefore, made no improper ruling relating thereto. Nonetheless, in the interests of fairness to all concerned, we are persuaded that it is appropriate to order a new trial to afford Dobosz the opportunity to prove that access to the Mt. Hawley policy mitigated Hallas’ losses in whole or in part.

B

In their cross appeal, Zervos and Nyland, the holders of two mortgages junior in interest to the mortgages held by Hallas, challenge the propriety of the verdict directed against them by the trial court. They contend that the trial court improperly ruled that they had failed to prove that the Alves property had sufficient value to cover their junior liens. We agree with the trial court’s judgment with regard to these claims.

In order to establish their claim for relief, Zervos and Nyland produced the following evidence. The amount of the Scottsdale policy was $325,000. At the time of the fire, Hallas’ mortgage liens amounted to $218,200, while their liens amounted to $115,255.94. Had they had the opportunity to reinstate the Scottsdale policy, that policy potentially would have covered a significant portion of their liens. They were not insureds under the single interest Mt. Hawley policy, whose face amount was, in any case, only $217,500.

The right of mortgagees to recover rests, however, not only on the face amount of their lien interests but also on the value of the insured property. Zervos and Nyland concede that, as junior mortgagees, they can only recover to the extent that both (1) the amount of insurance coverage, and (2) the damage done to the insured premises, based on an accurate valuation of the destroyed property, exceed the amount secured by the senior mortgages.

For the purpose of establishing the value of the destroyed property, the three plaintiffs relied on the testimony of John Cotter, Jr., a licensed public adjuster, who prepared the figures in the claim that Hallas filed against Mt. Hawley. Cotter testified, on the basis of his inspection of the property after the fire, that its replacement cost value was $531,269.83. He was less precise about its actual cash value before the fire. He could not identify when he had last seen the property before it had burned, and acknowledged that the time gap might have been as much as four years. Although the property was used as a rooming house, Cotter did not know what income it had generated prior to the fire. He did not calculate the depreciation on the property because even a 50 percent depreciation factor would still have provided full coverage for Hallas. He ventured the opinion, nonetheless, that the property’s actual depreciation would have been in the neighborhood of 30 to 35 percent, an amount that would have protected the junior liens under the Scottsdale policy.

The trial court apparently concluded that this testimony was, with respect to Zervos and Nyland, so speculative and imprecise that, as a matter of law, their claims could not go forward. The junior lienors did not file a motion for articulation to clarify the basis of the trial court’s ruling. On this record, we can discern no impropriety in the judgment of the trial court. See Berry v. Loiseau, 223 Conn. 786, 818-19, 615 A.2d 414 (1992).

Ill

In the second case, Docket No. 15490, which was grounded on a claim of breach of contract, the three plaintiffs appeal from the trial court’s direction of a verdict in favor of Scottsdale. The parties agree that the basis for the trial court’s ruling was the plaintiffs’ actual knowledge, some four months prior to the fire, that the Scottsdale policy had been cancelled. We conclude that the trial court’s judgment in favor of Scottsdale should be affirmed, but for reasons partially different from the conclusions reached by the trial court. See Bernstein v. Nemeyer, 213 Conn. 665, 669, 570 A.2d 164 (1990); Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978).

In assigning dispositive weight to the plaintiffs’ actual knowledge of the cancellation of the Scottsdale policy, the trial court assumed that the plaintiffs were entitled to notice in the first place. The trial court relied on Johnston v. American Employers Ins. Co., 25 Conn. App. 95, 592 A.2d 975 (1991), but that case is inapposite because it involved the rights of the insureds named on the insurance policy.

Written notice of cancellation of a fire insurance policy must be given, pursuant to General Statutes § 38a-307, “to a designated mortgagee not named herein as the insured.” It is undisputed that the plaintiffs were not designated as mortgagees on the Scottsdale policy itself. The question, therefore, is whether their designation on the insurance binder negligently issued by Dobosz is sufficient to make them designated mortgagees with respect to Scottsdale. Resolving that question in accordance with established rules of agency, we conclude that, in the circumstances of this case, the terms of the binder do not impose liability on Scottsdale because there is no probative evidence in the record to establish an agency relationship between Dobosz and Scottsdale.

“[T]he three elements required to show the existence of an agency relationship include: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking. Restatement (Second), 1 Agency § 1, comment b (1958).” (Internal quotation marks omitted.) Gateway Co. v. DiNoia, 232 Conn. 223, 240, 654 A.2d 342 (1995); see also Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 184, 544 A.2d 1185 (1988); Botticello v. Stefanovicz, 177 Conn. 22, 25, 411 A.2d 16 (1979). “A principal is generally liable for the authorized acts of his agent; 1 Restatement (Second), Agency § 140, p. 349 (1958) . . . .” Gateway Co. v. DiNoia, supra, 240.

The record contains no evidence that, in issuing the binder listing the mortgagees, Dobosz was acting as an agent for Scottsdale. Scottsdale could not very well have authorized Dobosz to issue a binder covering mortgagees when the interests of those mortgagees had not been disclosed to Scottsdale. The testimony was to the same effect. Dobosz testified that he was an agent for Alves and not an agent for Scottsdale and that he had no authority to bind Scottsdale’s coverage. Hallas testified that, when he asked Dobosz to obtain insurance for him, he, Hallas, was aware that Dobosz could not issue the policy himself. The plaintiffs acknowledge that Dobosz arranged for their insurance, not by contacting Scottsdale directly, but by contacting Continental, an excess lines insurance broker. They further acknowledge that “Continental is not, was not and never was Scottsdale’s agent.” Although agency is normally a question of fact; see, e.g., Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 133, 464 A.2d 6 (1983); no reasonable juror could find actual or implied agency in these circumstances. See Russo v. McAviney, 96 Conn. 21, 24, 112 A. 657 (1921) (agency relationship decided as matter of law).

Turning to the law of apparent authority, we similarly find nothing in the record to show that Dobosz was acting as an apparent agent of Scottsdale. “Apparent authority must be derived not from the acts of the agent but from the acts of his principal. [T]he acts of the principal must be such that (1) the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted him to act as having such authority, and (2) in consequence thereof the person dealing with the agent, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority.” (Internal quotation marks omitted.) Lettieri v. American Savings Bank, 182 Conn. 1, 8, 437 A.2d 822 (1980); see also Beckenstein v. Potter & Carrier, Inc., supra, 191 Conn. 140; Fireman’s Fund Indemnity Co. v. Longshore Beach & Country Club, Inc., 127 Conn. 493, 497, 18 A.2d 347 (1941); 1 Restatement (Second), supra, § 8, pp. 30-32. Scottsdale neither designated Dobosz as its agent, nor provided Dobosz with blank binder forms, blank policy forms, endorsements, stamps or anything else that bore Scottsdale’s name. Scottsdale did not instruct Dobosz to issue a binder covering the plaintiff mortgagees in this case. It was only with respect to Alves that Scottsdale and the other brokers told Dobosz that coverage had been bound. Although Dobosz collected premiums for Scottsdale, he did so on instructions from Continental, which concededly was not Scottsdale’s agent. Dobosz’ conduct in issuing binders in the ordinary course of his business is not evidence that Scottsdale held him out, in this case, as having authority to issue a binder as an agent of Scottsdale. Neither by word nor by act did Scottsdale hold Dobosz out to the plaintiffs as having the authority to bind Scottsdale to any of the plaintiffs as a “designated mortgagee.”

Without an agency relationship of any kind between Scottsdale and Dobosz, Scottsdale owed the plaintiffs no contractual duty whatsoever. It follows that, without such an agency relationship, Scottsdale had no statutory duty to give the plaintiffs notice of the cancellation of the Alves fire insurance policy. The judgment in favor of Scottsdale must, therefore, be affirmed.

In the first case, Docket No. 15489, the judgment with respect to Hallas is reversed and the case is remanded for a new trial; the judgment with respect to the defendants as against Zervos and Nyland is affirmed. In the second case, Docket No. 15490, the judgment is affirmed.

In this opinion the other justices concurred.

       Nyland died subsequent to filing this appeal. Griffith H. Trow, acting as fiduciary for Nyland’s estate, was substituted as a party plaintiff. We will continue to refer to Nyland, however, as a plaintiff.

       Because the record discloses no difference in the interests of the defendants Boehmke and Dobosz, Inc., and Walter Dobosz in this litigation, we will refer to the defendants, in the singular, as Dobosz.

       The plaintiffs’ complaint alleged that Dobosz had been negligent in: (1) representing that coverage had been obtained to reflect the plaintiffs’ interest as mortgagees, when such coverage had not been obtained; (2) issuing an insurance binder purporting to cover the plaintiffs’ interest as mortgagees and representing that he had the authority to issue such a binder, when he had no such authority; (3) preparing and processing a commercial insurance application that failed to notify the Scottsdale Insurance Company (Scottsdale) of the plaintiffs’ interest as mortgagees; and (4) delivering the Scottsdale policy to Alves without informing the plaintiffs that their interest as mortgagees was not protected by that policy.

       The corrected amount is equal to the amount secured by the first mortgage originally held by Lois Simpson and subsequently assigned to Hallas. Evidently, the jury did not include in its award the $30,000 secured by the second mortgage also held by Simpson and subsequently assigned to Hallas.

       The plaintiffs filed a nine count complaint. In the first four counts, Hallas alleged that Scottsdale’s failure to provide him with notice of the cancellation of the Alves policy; see General Statutes § 38a-170; imposed liability upon Scottsdale to pay for the fire loss because: (1) it was bound by the terms of the binder issued by its agent, Dobosz; (2) it was obligated to act in accordance with its implied covenant of good faith and fair dealing; (3) its conduct constituted unfair and deceptive acts or practices in the business of insurance; General Statutes §§ 38a-815 and 38a-816; and (4) its conduct constituted unfair or deceptive acts or practices in the conduct of trade or commerce; General Statutes § 42-110b et seq. Counts five through eight made the same allegations on behalf of Zervos and Nyland. Count nine sought reformation of the Alves insurance policy to include the interests of the plaintiff mortgagees.
      The plaintiffs have not appealed from the directed verdict on counts three, four, seven, eight and nine.

       “Excess lines” or “surplus lines” insurance is “specialized property or liability coverage provided by a nonadmitted insurer in instances where it is unavailable from insurers licensed by the state.” Barron’s Business Guide, Dictionary of Insurance Terms (3d Ed. 1995).

       General Statutes § 38a-324 provides in relevant part: “Cancellation of commercial risk insurance policies. Notice requirements. Applicable to surplus lines insurers, (a) After a policy of commercial risk insurance . . . has been in effect for more than sixty days, or after the effective date of a renewal policy, no insurer may cancel any policy unless the cancellation is based on the occurrence, after the effective date of the policy or renewal, of one or more of the following conditions: (1) Nonpayment of premium .... If the basis for cancellation is nonpayment of premium, at least ten days’ advance notice shall be given and the insured may continue the coverage and avoid the effect of the cancellation by payment in full at any time prior to the effective date of cancellation. . . .
      “(b) No surplus lines insurer shall be deemed to be eligible to write coverage for risks as provided in sections 38a-741 to 38a-744, inclusive, 38a-777,38a-794 and 38a-795, unless such insurer complies with the requirements of subsection (a) of this section.”

       The timing of the actual notice distinguishes this case from Johnston v. American Employers Ins. Co., 25 Conn. App. 95, 592 A.2d 975 (1991). In that case, the insureds received actual notice of the pending cancellation of their automobile insurance policy from their own insurance agent before the date of its actual cancellation. Id., 97-98. At a time when presumably they could have reinstated the policy by paying the premiums on which they had defaulted, they chose to purchase alternate insurance. Id., 98.

       For example, the Scottsdale policy was purchased for $5671 and covered the insured premises for $325,000, the term lasting November 3, 1989, through November 3,1990. In comparison, Hallas purchased the Mt. Hawley policy for $4544, obtaining $217,500 in coverage for a period lasting from July 9, 1990, through July 9, 1991.

       In light of the new trial that we have ordered, we must address Dobosz’ claim that Hallas was obligated to present expert evidence to inform the jury about the duty owed by insurance agents to mortgagees. We reject this claim. As in Todd v. Malafronte, 3 Conn. App. 16, 19, 484 A.2d 463 (1984), on which Dobosz relies, Dobosz himself testified to the duties of an insurance agent. He acknowledged that these duties included obtaining proper insurance for mortgagees and ensuring that the mortgagees’ interests were fully protected. There was no testimony to the contrary. Under these circumstances, no further expert evidence was required.

       Zervos and Nyland calculate the value of their liens by taking $103,214.24, the outstanding mortgage principal, and adding ten months interest at 14 percent.

       Practice Book § 4051 permits a party to file a motion with the trial court seeking further articulation of a trial court decision. If Zervos and Nyland had deemed the court’s decision to be incomplete or ambiguous, it was their responsibility to invoke their rights under this section. See Barnes v. Barnes, 190 Conn. 491, 493, 460 A.2d 1302 (1983).

       See footnote 8.

       Section 38a-307 sets forth the standard form to be used for fire insurance policies. Pursuant to this section, the form must contain a paragraph that provides: "Mortgagee interests and obligations. If loss hereunder is made payable, in whole or in part, to a designated mortgagee not named herein as the insured, such interest in this policy may be cancelled by giving to such mortgagee a ten days’ written notice of cancellation. . . .”

       The excess line affidavit that is an exhibit in this case indicates, as Connecticut law requires, that three licensed insurers, Aetna Casualty and Surety Company, Middlesex Mutual Assurance Company and General Accident and Indemnity Company, had declined to insure this risk. Even if Dobosz had authority to issue insurance on behalf of these companies, such agency does not establish that he had the authority to write excess liability insurance. Cf. General Statutes § 38a-794 (establishing licensing requirements for excess lines brokers).

       The United States District Court cases cited in the plaintiffs’ reply brief do not. persuade us otherwise. See Passarelo v. Lexington Ins. Co., 740 F. Sup. 933, 937-38 (D. Conn. 1990); Teleco Oilfield Services, Inc. v. Skandia Ins. Co., 656 F. Sup. 753, 757 (D. Conn. 1987). In neither of these cases did all parties concede that the insurance broker was only accountable to an entity that was not an agent of the insurer. We decline, moreover, to hold that a broker may become an agent for an insurer simply by collecting and remitting premiums for the insurer’s ultimate benefit. To the extent that the language in Passarelo or Teleco Oil Field Services, Inc., adopts this proposition, we reject it as a matter of state law. To do otherwise would effectively make agents out of all independent insurance brokers.