author: Peters, C. J.

text:
    Burt’s Spirit Shop, Inc. v. Edward S. Ridgway et al. Burt’s Spirit Shop, Inc. v. Janina M. Ridgway
    (13928)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.
    Argued May 9
    decision released June 19, 1990

      DannellP. Malloy, with whom was John V. Bologna, for the appellants (named defendant et al. in the first, case, defendant in the second case).

      Howard R. Wolfe, with whom, on the brief, were David Albert and Ellen G. Pollack, for the appellee (plaintiff).
   Peters, C. J.

The principal issue in this appeal is the enforceability of notes and mortgages arising out of a sale of a business whose profitability is impaired by the death of a key employee. The plaintiff, Burt’s Spirit Shop, Inc., brought an action against the defendants Edward S. Ridgway and Janina M. Ridgway to foreclose mortgages securing a note executed by Janina Ridgway. A second, contemporaneous, action by the plaintiff sought to collect on this and another note executed by her. In counterclaims in these actions, the defendants asserted that the untimely death of Burton Wolk allowed them to rescind the agreements between the parties. The trial court referred both cases to an attorney trial referee who, after a hearing, made findings of fact and recommendations of law in favor of the plaintiff. The trial court accepted the referee’s report and rendered judgments accordingly. The defendants filed an appeal to the Appellate Court, which we transferred to this court in accordance with Practice Book § 4023. We affirm the judgments rendered by the trial court.

There is no dispute about the underlying facts found by the attorney trial referee. In June, 1985, the plaintiff, Burt’s Spirit Shop, Inc., contracted to sell its Greenwich liquor store business to the defendant Janina M. Ridgway for $270,000. The purchase agreement contained a provision, expressly described as being “of the essence of this agreement” that obligated Burton Wolk, the plaintiff’s president, sole owner and operator, to provide personal services to the new owner for a period of six months following the closing of title. At the closing, on July 1,1985, the parties confirmed their understanding that this employment obligation would survive the closing. Wolk’s services were important because of Janina Ridgway’s inexperience in this business and because of Wolk’s knowledge of his customers, his merchandise, his charge account procedures and the liquor trade in general.

At the closing, as previously agreed, the plaintiff conveyed to Janina Ridgway the property rights in its business in return for two promissory notes executed by her. The first note was a $220,000 promissory note for the remaining part of the purchase price of the seller’s assets (asset note). This note called for periodic payments of principal and interest until its final maturity date of July 1,1991, and permitted acceleration by its holder in the event of a thirty day default in any of the stipulated periodic payments. The asset note was secured by two mortgages on property owned by Janina Ridgway and her husband, Edward S. Ridgway. The second note was a $95,755.87 note for the value of the stock in trade as of that date (stock note). This unsecured note was to be paid in three specified installments by October 29, 1985.

Wolk’s employment in accordance with the purchase agreement began as scheduled. It was prematurely terminated, however, well before its contemplated six month duration, because he suffered a heart attack in August, 1985, and died at the end of that month. There was no evidence that Wolk had known of any heart condition either when the contract of sale was negotiated or at the time of the closing.

Janina Ridgway paid $20,000 on the stock note on July 22, 1985, in accordance with its terms. No other payments had been made on either note when the plaintiff notified both defendants, on January 28,1986, that each of the notes was in default. Thereafter, on March 19, 1986, Janina Ridgway made a payment of $42,745.35, which, by agreement, was allocated in part to the principal of the stock note and in part to accumulated interest on the stock note and the asset note. During the following month, Edward Ridgway discussed a rescission with the plaintiffs attorney but that suggestion was rejected by the attorney.

On the basis of these findings, and other evidence presented at the hearing, the trial referee concluded that the defendants had not fulfilled the requirements for rescission but were entitled to an offset for the diminution in value of their purchase in light of Wolk’s premature death. The referee found that as a result of his death the value of the business had diminished by $22,380 and made a corresponding adjustment in the amount due the plaintiff on the asset note. In all other respects, he found for the plaintiff, awarding it a recovery on the notes, as well as attorney’s fees and costs, and the right to foreclose on the mortgaged property. Over the defendants’ objection, the trial court rendered judgments in accordance with the referee’s report.

The defendants’ joint appeal from the judgments of the trial court raises the following issues: (1) Should the court have permitted them to rescind their agreement with the plaintiff in light of Wolk’s death? (2) If rescission were unavailable, did the court adequately compensate them for the reduction in the value of the business attributable to Wolk’s death? (3) Did the court properly construe the payment provisions of the promissory notes? (4) Did the court properly hold their mortgages to be enforceable? (5) Was the court’s assessment of fees and costs proper? We are persuaded that the trial court resolved each of these issues correctly.

I

The defendants’ principal grounds for appeal concern the consequences of the unforeseeable untimely death of Burton Wolk, on whom the defendants relied for know-how about the retail liquor business that Janina Ridgway had bought. The defendants maintain that the substantial unavailability of his services, which were “of the essence” for the contract of purchase, severely impaired the profitability of the business. This contention comes to us in two versions: the trial court should have permitted rescission in toto, or, at least, should have assigned a higher monetary value as an offset to the amount due on the note and the mortgages securing the notes. On the present record, we disagree.

The defendants cannot prevail in their claim for rescission because of adverse findings of fact by the attorney trial referee. Although Wolk died at the end of August, 1985, Janina Ridgway, having been notified of her default on both promissory notes, made a partial payment on both notes in March, 1986. A month later, Edward Ridgway first discussed rescission in a general way with the plaintiff's attorney. Janina Ridgway continued, however, to operate the business through the time of trial in 1988. The defendants never offered to restore the plaintiff to its former position, and they never memorialized a request for rescission in writing, as the purchase agreement would have required. These facts support the trial referee’s conclusion, which the trial court accepted, that the defendants, at no time after Wolk’s death, made a proper offer of rescission. “We have regularly held that it is a condition of rescission and restitution that [the party seeking rescission] offer, as nearly as .possible, to place the other party in the same situation that existed prior to the execution of the contract. Metcalfe v. Talarski, [213 Conn. 145, 153-54, 567 A.2d 1148 (1989)]; Duksa v. Middletown, 192 Conn. 191, 197, 472 A.2d 1 (1984); Keyes v. Brown, 155 Conn. 469, 476, 232 A.2d 486 (1967); Kavarco v. T.J.E., Inc., [2 Conn. App. 294, 299, 478 A.2d 257 (1984)].” Bernstein v. Nemeyer, 213 Conn. 665, 675, 570 A.2d 164 (1990).

In light of the conclusion that the defendants did not, in timely and proper fashion, avail themselves of any right to rescission that they might have had in consequence of Wolk’s death, we need not discuss the substantive contours of their rescissionary claim. See 2 Restatement (Second), Contracts § 271 (1981). It bears emphasis, however, that the decision to award a remedy for rescission for breach of contract always depends upon a showing of what justice requires in the particular circumstances, and thus necessarily rests in the discretion of the trial court. Bernstein v. Nemeyer, supra, and cases there cited.

The defendants’ alternate claim with regard to Wolk’s death is that the trial court undervalued the financial impact of this event on the business that Janina Ridgway bought. The trial referee concluded that Wolk’s death reduced the value of the business, which had been sold for $270,000, by only $22,380. The referee arrived at this conclusion in reliance on a finding based on the expert testimony of the defendants’ witness, Frank E. Beame, Jr., that “the Buyer paid $29,000 more than what the expert opined was the fair market value of the Business as of the closing date.” The referee took the position that this $29,000 premium represented the value of Wolk’s services, and reduced the purchase price proportionately to reflect the fact that August 11, 1985, was the last date that Wolk worked.

The defendants’ attack on this factual finding is not properly before us. Having failed to ask the trial court to correct the referee's finding of what the business was worth, the defendants cannot now resurrect that claim here. Practice Book §§ 438, 440; Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 518, 508 A.2d 415 (1986). This procedural lacuna cannot be filled by reference to the defendants’ altogether conclusory allegations in the trial court that the referee had improperly prevented them from making a proper evidentiary showing about the diminished value of the property.

II

In addition to their claims for total or partial rescission, the defendants have raised two other challenges to the enforceability of the obligations on which the plaintiff premised its causes of action. With respect to the asset note signed by Janina Ridgway as maker, they maintain that the plaintiffs suit is premature, the attorney trial referee and the trial court having allegedly misconstrued the due date for payments required by that instrument. With respect to the mortgages, they contend that the absence of a provision in the mortgages that specifies the amounts due renders the mortgages unenforceable at any time. We disagree with both of these claims.

A

The attorney trial referee and the trial court concluded that the plaintiffs exercise of its option to invoke an acceleration clause in the asset note made that note payable in full at the time of the plaintiffs actions. The defendants do not contest the finding of the attorney trial referee that Janina Ridgway never made any payments against the principal amount of the asset note subsequent to the date of the closing. According to the terms of the asset note, payments of principal in the amount of $50,000 were due on January 1, 1986, and July 1,1986, with the balance to be paid off in monthly installments beginning on August 1,1986, and continuing until July 1,1991. The payment provisions of the note conclude with the following: “Provided however, that if not sooner paid, the entire unpaid principal balance, together with accrued interest shall be due and payable July 1, 1991.” The defendants maintain that, despite a subsequent acceleration clause making nonpayment of a principal payment an event of default, the final proviso in the payments section of the note in effect confers upon Janina Ridgway the option to choose between two methods of payment, either payment of the entire indebtedness on its due date of July 1, 1991, or prepayment of the indebtedness in accordance with the designated payment schedule. If the defendants’ interpretation of the asset note were correct, there would have been no actionable default until 1991.

The drafting of the payment provisions of the asset note leaves a good deal to be desired. On its face, the note creates an apparent conflict between the proviso that it is “due and payable July 1,1991,” and the inclusion of a schedule for specific installment payments that is linked to an acceleration clause. The defendants are correct in their contention that we are obligated to give appropriate effect to the note “as a whole and in such a manner as to give effect to every provision, if reasonably possible.” Hatcho Corporation v. Della Pietra, 195 Conn. 18, 20, 485 A.2d 1285 (1985); Ingalls v. Roger Smith Hotels Corporation, 143 Conn. 1, 6, 118 A.2d 463 (1955). By itself, however, this rule of construction does not dictate which of two potentially conflicting provisions should be afforded primary weight.

When a negotiable instrument requires clarification, the Uniform Commercial Code, in General Statutes § 42a-3-119, counsels that “[a]s between the obligor and his immediate obligee . . . the terms of an instrument may be modified or affected by any other written agreement executed as a part of the same transaction. . . .” In this case, the defendants executed their two mortgages as security for the asset note at the time of the closing of the purchase of the plaintiffs business. Both mortages refer to the underlying asset note as having a “final maturity on July 1, 1991,” and then spell out in detail, in terms similar to those contained in the note, the rights of the plaintiff to declare the entire indebtedness immediately due and payable in the event of failure “to pay any installment of principal or interest on said promissory note when due.” Between these parties, the payment terms of the note are “modified or affected” by the unambiguous acceleration clause in the mortgage. Jenkins v. Thyer, 760 S.W.2d 932, 935-36 (Mo. App. 1988); see also Merchants National Bank & Trust Co. v. Professional Men’s Assn., Inc., 409 F.2d 600, 603 (5th Cir. 1969); Sanden v. Hanson, 210 N.W.2d 404, 408 (N.D. 1972). As a result, like the referee and the trial court, we construe the payment provisions of the note as entitling its holder, the plaintiff, to give notice of a default and to accelerate the principal amount on the ground of Janina Ridgway’s nonpayment of installments due before the filing of its lawsuits.

The other negotiable instrument that, at the time of the closing, was “executed as part of the same transaction” was the stock note. The payment provisions of the stock note closely resemble those of the asset note. Yet, as the plaintiff reminds us, the defendants have not challenged the viability of the acceleration clause in the stock note. That fact lends additional support to our construction of the terms of the asset note.

We therefore conclude that the plaintiff properly exercised the acceleration clause in the asset note upon Janina Ridgway’s default in the principal payment due January 1,1986. The plaintiff’s subsequent lawsuit to recover the whole of the indebtedness, including both principal and interest, accordingly, was timely.

B

Even if the asset note is due and payable, the defendants contend that their mortgages securing this obligation are unenforceable because the mortgages do not contain an express statement of the principal amount secured or the applicable rate of interest. The mortgages recite that “Janina M. Ridgway is justly indebted to the grantee in the sum of_Dollars, as is evidenced by her promissory note of even date herewith _payable to the order of the grantee with_ interest as set forth therein, with final maturity on July 1, 1991.”

In Connecticut National Bank v. Esposito, 210 Conn. 221, 554 A.2d 735 (1989), we recently reiterated the common law standards that, as between a mortgagee and a third party creditor, determine the validity of a mortgage. We there held that a mortgage is valid if it contains “sufficient information to inform one searching the land records of the general nature of the obligation and put[s] the searcher on a track to inquire further and, through common prudence and ordinary diligence, discover the details of the mortgage transaction.” Id., 231-32. In the absence of any factual indication of fraud, we upheld the validity of the mortgage in that case even though the payment obligations it secured were contained in a lease and progress payment agreement that was not attached to the mortgage or otherwise recorded in the land records. Id., 223. That holding is dispositive here.

Indeed, the rule announced in Esposito is more stringent than necessary to reject the defendants’ claims in this case. “The principle that a mortgage deed must with reasonable certainty set forth the nature and amount of the debt is relevant in determining the validity of the mortgage as against subsequent encumbrancers but not as between the parties themselves. Thomaston Savings Bank v. Warner, 144 Conn. 97, 100, 127 A.2d 495 [1956]; Sadd v. Heim, 143 Conn. 582, 585, 124 A.2d 522 [1956].” State National Bank of Connecticut v. Dick, 164 Conn. 523, 530, 325 A.2d 235 (1973). The defendants cannot prevail in their contention that, their mortgages are unenforceable.

Ill

The defendants’ final claims on this appeal challenge the propriety of the fees and costs assessed against them by the trial court. They contend that (1) it was an abuse of discretion to award fees and costs to the plaintiff alone when the court awarded them an offset from the face amount of the asset note, and (2) the court lacked the authority to award the plaintiff additional attorney’s fees without remanding that issue, for a factual finding, to the attorney trial referee. We are unpersuaded.

For their first contention, the defendants rely on Practice Book § 419, which provides, in part, that “[w]henever in any action there shall be two or more issues joined on material allegations, and a part of such issues shall be found for the defendant and the remainder for the plaintiff, the defendant shall recover such costs as were incurred by him upon the issues found in his favor, including fees of witnesses and the expense of summoning them.” The record demonstrates, however, that the defendants have failed to preserve any claim to such an award, even if it were justified on its merits, since their exceptions and objections to the report filed by the attorney referee did not raise this issue. Absent a timely objection, this claim is presently unreviewable. Seal Audio, Inc. v. Bozak, Inc., supra, 502-503, 518.

For their final contention, the defendants challenge the propriety of fees and costs that the trial court awarded the plaintiff for expenses incurred subsequent to the proceedings before the attorney trial referee. The defendants maintain that the court was required to remand this matter to the attorney trial referee for his adjudication. We disagree. The mortgages and the promissory notes all contained provisions for the payment of costs of collections including reasonable attorney’s fees. The defendants have not contested the validity of these clauses or the reasonableness of the amounts requested by the plaintiff and awarded pursuant thereto. As we held in Dills v. Enfield, 210 Conn. 705, 713, 557 A.2d 517 (1989), the trial court always retains the authority “to render whatever judgment appropriately follows, as a matter of law, from the facts found by the attorney trial referee.” In the present circumstances, we conclude that the trial court acted within the bounds of its authority.

The judgment is affirmed.

In this opinion the other justices concurred.

       On the stock note, the attorney trial referee directed judgment for the plaintiff against Janina Ridgway on the unpaid balance of $50,755.87 plus interest and attorney’s fees. On the asset note, he directed that its principal balance be reduced by $22,380 from August 11, 1985, and directed judgment on the balance of $197,620 plus interest and attorney’s fees.

       The referee apparently did not find credible Edward Ridgway’s testimony that he had discussed rescission with the plaintiffs attorney at meetings held -with him in September and October, 1985.

       The purchase agreement provided in relevant part as follows:
      “22) Modification. This Agreement cannot be modified, changed, altered, discharged or terminated except by a writing signed by the parties. . . .
      “25) Notices. Any notice, request, instruction, legal process, or other document to be given hereunder shall be in writing and, except as otherwise provided herein or specifically and in writing directed by the recipient, shall be delivered personally or by registered mail, return receipt requested, as set forth below. ...”

       The promissory note obligated its maker to pay the principal amount of $220,000 and interest at the rate of 12 percent per annum as follows:
      “a) On January 1, 1986, a principal payment of FIFTY THOUSAND ($50,000.00) DOLLARS, together with accrued interest on the entire unpaid principal balance;
      “b) On July 1, 1986, a principal payment of FIFTY THOUSAND ($50,000.00) DOLLARS, together with accrued interest on the unpaid principal balance;
      “c) Commencing August 1,1986, the then outstanding principal balance of ONE HUNDRED TWENTY THOUSAND ($120,000.00) DOLLARS shall be due and payable, together with interest thereon at the aforesaid rate, in consecutive monthly installments of $2,669.34, commencing on August 1, 1986 and a like sum on the first day of each month thereafter until July 1, 1991 when the entire unpaid principal and accrued interst shall be due and payable.

        “Provided however, that if not sooner paid, the entire unpaid principal balance, together with accrued interest shall be due and payable July 1, 1991.”
      The note expressly reserved a right to the maker to prepay and a right to the holder to declare a default making the entire indebtedness immediately due and payable upon a number of stipulated contingencies including “(a) Failure to make payment of principal or interest within thirty (30) days after the same shall be due and payable . . . .”


source: Caselaw Access Project

author: Glass, J. Covello, J.,

license: Public Domain

text:
    O’Brien Properties, Inc. v. Josefa Rodriguez et al.
    (13843)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.

      Argued April 3
    decision released June 19, 1990

      David A. Pels, for the appellants (defendants).

      Alfred J. Garofolo, with whom, on the brief, was Martin A. Gould, for the appellee (plaintiff).

      Clarine Nardi Riddle, attorney general, and Richard J. Lynch and Sharon A. Scully, assistant attorneys general, filed a brief for the attorney general as amicus curiae.

      Lawrence W. Berliner, senior staff attorney, filed a brief for Eliot J. Dober, Executive Director of the Office of Protection and Advocacy for Persons with Disabilities,. as amicus curiae.
   Glass, J.

The dispositive issue in this summary process action is whether a tenant at sufferance is entitled to the “good cause” protection from eviction provided for in General Statutes § 47a-23c. The trial court determined that a tenant at sufferance is not entitled to such protection. We do not agree.

The plaintiff, O’Brien Properties, Inc. (landlord), sought to take possession of apartment C-6 located at 61 Willard Street in Hartford, from the defendants, Josefa Rodriguez, Priscilla Quinones and Samuel Melendez (tenants). In the first count of the revised complaint, the landlord sought possession against Rodriguez and Melendez based on a lapse of time. The second count, directed solely against Quinones, sought possession for unauthorized occupancy. Judgment of default was entered against Melendez. The other tenants, Rodriguez and Quinones, denied the essential allegations of the revised complaint and interposed a special defense claiming that Quinones was a protected tenant under § 47a-23c.

The facts found by the trial court as reflected in its memorandum of decision are essentially undisputed. Quinones, thirty-three years of age at the time of the trial, had resided in the apartment with Rodriguez, who is her mother, for almost two and one-half years. They shared the apartment with Melendez, until December, 1988, when he moved out. Melendez and Rodriguez occupied the apartment under an oral month-to-month lease. In September, 1988, the plaintiff became the property manager of the building and acquired title to it in January, 1989. Quinones’ name was on the mail box throughout this time, yet the plaintiff’s vice-president and the current property manager testified that they were unaware of her presence until shortly before the notice to quit was issued in April, 1989. While Quinones contributes one half of the rent, Rodriguez purchases, makes out and signs the money orders by which the rent is paid to the plaintiff.

The question presented by this case is whether Quinones is a “tenant” for the purposes of § 47a-23c (a) (1), which mandates, in part, that a person can be evicted only upon a showing of “good cause” if the following criteria are met: (1) the person is a tenant; (2) the building or complex consists of five or more separate dwelling units; and (3) the tenant is elderly, blind or physically disabled. Although the parties agree that the building complex in question has five or more separate dwelling units and that Quinones is physically disabled with cerebral palsy, they disagree about Quinones’ status as a “tenant” for the purposes of § 47a-23c (a) (1). The trial court rendered judgment for the plaintiff, holding that Quinones, as a tenant at sufferance, is not a “tenant” for the purposes of § 47a-23c (a) (1). The defendants argue that the trial court should not have made this determination. We agree.

The trial court concluded that a tenant at sufferance could not be a “tenant” for the purposes of § 47a-23c (a) (1), because subsection (b) of the statute, which enumerates seven grounds for “good cause” eviction, states that a landlord may evict a tenant if the tenant refuses to agree to “a fair and equitable rent increase.” The trial court reasoned that since “a tenant at sufferance is not obligated to pay rent but only the reasonable rental value of the premises as use and occupancy . . . failure to pay use and occupancy could not be grounds to evict such a tenant otherwise protected by § 47a-23c (a) (1).” (Emphasis added.) The trial court reasoned further that holding to the contrary “would entitle a tenant at sufferance to greater immunity than is afforded all other tenants,” leading to a “ludicrous” result. We are not persuaded by the trial court’s reasoning.

General Statutes § 47a-l (l) defines “tenant” as follows: “ ‘Tenant’ means the lessee, sublessee or person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others, or as is otherwise defined by law.” “ ‘A tenancy at sufferance arises when a person who came into possession of land rightfully continues in possession wrongfully after his right thereto has terminated.’ Welk v. Bidwell, 136 Conn. 603, 608-609, 73 A.2d 295 (1950).” Rivera v. Santiago, 4 Conn. App. 608, 609-10, 495 A.2d 1122 (1985). “The issuance by a landlord of a notice to quit is an unequivocal act terminating the lease agreement with the tenant. Termination of the lease does not terminate the tenancy since, upon service of a notice to quit, a tenancy at sufferance is created. Bushnell Plaza Development Corporation v. Fazzano, 38 Conn. Sup. 683, 460 A.2d 1311 (1983).” Id., 610. “After a notice to quit has been served ... a tenant at sufferance no longer has a duty to pay rent. He still, however, is obliged to pay a fair rental value in the form of use and occupancy for the dwelling unit. Lonergan v. Connecticut Food Store, Inc., 168 Conn. 122, 131, 357 A.2d 910 (1975).” Id.

The defendants argue that a tenant at sufferance is included within § 47a-l (If s definition of “tenant” by virtue of the language: “or as is otherwise defined by law.” (Emphasis added.) We agree. We note that no word in a statute should be treated as superfluous or insignificant; Harris Data Communications, Inc. v. Heffernan, 183 Conn. 194, 197, 438 A.2d 1178 (1981); Green v. Freedom of Information Commission, 178 Conn. 700, 703, 425 A.2d 122 (1979); and that we strive to attach independent meaning to every phrase contained in a legislative enactment. Rawling v. New Haven, 206 Conn. 100, 112, 537 A.2d 439 (1988). Thus, given that § 47a-l (l) expressly states that a person with a rental agreement is a “tenant,” if we are to give any independent meaning to the language “or as is otherwise defined by law,” (emphasis added) we must conclude that certain persons classified as tenants by law who do not have rental agreements are also “tenants” under the statute.

Our conclusion that a tenant at sufferance is a “tenant” for the purposes of § 47a-23c (a) (1) finds support in the fact that § 47a-23c is a remedial statute intended to benefit elderly, blind and physically disabled tenants. Since remedial statutes are to be construed liberally in favor of those whom the legislature intended to benefit; Hinchliffe v. American Motors Corporation, 184 Conn. 607, 615 n.4, 440 A.2d 810 (1981); Hartford Fire Ins. Co. v. Brown, 164 Conn. 497, 503, 325 A.2d 228 (1973); and given the fact that the legislature did not expressly exclude tenants at sufferance, we conclude that § 47a-23e should be liberally construed to protect all elderly, blind and physically disabled tenants, including tenants at sufferance.

Moreover, if we were to hold that tenants at sufferance were not “tenants” under § 47a-23c (a) (1), we would, in effect, be emasculating the protection afforded by the statute to the elderly, the blind and the physically handicapped. Specifically, if tenants at sufferance were not “tenants” for the purpose of the statute, then a landlord who wished to evict elderly, blind and disabled tenants without “good cause” would merely have to wait until their leases lapsed, because they would have then become tenants at sufferance.

In addition, we are not persuaded by the trial court’s concern regarding the apparent inapplicability, to tenants at sufferance, of one of the reasons for “good cause” eviction. In particular, the trial court was concerned that a landlord would be deprived of his right under § 47a-23c (b) (1) (B) to evict a tenant based upon the tenant’s “refusal to agree to a fair and equitable rent increase.” The trial court reasoned that, since a tenant at sufferance does not pay rent, but rather pays use and occupancy, this reason for eviction would not apply to a tenant at sufferance. We are not persuaded, however, that this ground for “good cause” eviction is inapplicable to tenants at sufferance. In particular, we conclude that a landlord could still exercise his right to “good cause” eviction against a tenant at sufferance under § 47a-23c (b) (1) (B), simply by offering the tenant at sufferance a rental agreement at a fair and equitable rent. Thereafter, if the tenant at sufferance refused to accept the rental agreement, the landlord’s recourse to “good cause” eviction would be appropriate. In sum, we hold that a tenant at sufferance is. a “tenant” for the purposes of § 47a-23c (a) (l).

The judgment is reversed and the case is remanded to the trial court with direction to render judgment for the defendants.

In this opinion Peters, C. J., Shea and Hull, Js., concurred.

Covello, J.,

dissenting. I disagree with the majority-opinion in that it fails to address the threshold question of how Quinones’ status was elevated from an occupant to a tenant at sufferance. By concluding that Quinones was a tenant at sufferance, the majority then goes on to find her a tenant within the meaning of General Statutes § 47a-l (l). Since the opinion fails to disclose how the tenancy at sufferance was created, I respectfully submit that the premise from which the opinion thereafter proceeds is fatally flawed.

The trial court found that Quinones resided with her mother at the Willard Street premises for almost two and one-half years. The trial court further found that “Melendez [the building superintendent] and Rodriguez [Quinones’ mother] occupied the apartment under an oral month to month lease.” Finally, the trial court found that there was no rental agreement between the plaintiff and Quinones as the plaintiff was unaware that she was even on the premises until shortly before it issued the notice to quit.

I submit that these facts establish that Melendez was the tenant at sufferance, i.e., the “person who came into possession of land rightfully [who thereafter] continues in posession wrongfully after his right thereto has terminated.” Welk v. Bidwell, 136 Conn. 603, 608-609, 73 A.2d 295 (1950). The existence of possession is largely a question of fact dependent on the nature of the property and the surrounding circumstances. “Generally, the inquiry is whether the individual has exercised the dominion and control that owners of like property usually exercise. 35 Am Jur. 2d, Forcible Entry and Detainer § 15; see Hancock v. Finch, 126 Conn. 121, 123, 9 A.2d 811 (1939).” Communiter Break Co. v. Scinto, 196 Conn. 390, 394, 493 A.2d 182 (1985). Here, the trial court concluded that Melendez, who thereafter moved out, and Rodriguez were in possession, not Quinones. Thus, Quinones had no greater status than simply that of family member or occupant.

That the General Assembly specifically contemplated that there could be occupiers of property who do not have the status of tenants is found in the definition under § 47a-l (j) of “Roomer,” i.e., “a person occupying a dwelling unit, which unit does not include a refrigerator, stove, kitchen sink, toilet and shower or bathtub and one or more of these facilities are used in common by other occupants in the structure.” (Emphasis added.) See also Restatement (Second), Property § 1.2, illustrations 1 and 2.

I submit that the startling conclusion reached by the majority here is that any occupant, whether family member, visitor or whatever, whose presence on the premises is derived from the person in actual possession, becomes a tenant at sufferance and therefore has available the full panoply of rights found in § 47a-1 et seq., including, e.g., the right to notice to quit possession, the right to institute legal action to enforce the landlord’s responsibilities, the right to secure substitute housing in event of the failure of the landlord to provide essential services, or to recover two month’s rent or double the actual damages sustained by the tenant due to the landlord’s failure to provide such services, etc. I do not believe that this is the contemplation of the statute. Accordingly, I dissent.

       “[General Statutes] Sec. 47a-23c. prohibition on eviction of certain tenants except for good cause, (a) (1) Except as provided in subdivision (2) of this subsection, this section applies to any tenant who resides in a building or complex consisting of five or more separate dwelling units and who is either: (A) Sixty-two years of age or older, or whose spouse, sibling, parent or grandparent is sixty-two years of age or older and permanently resides with that tenant; (B) blind, as defined in section 1-lf; or (C) physically disabled, as defined in section 1-lf, but only if such disability can be expected to result in death or to last for a continuous period of at least twelve months.
      “(2) With respect to tenants in common interest communities, this section applies only to (A) a conversion tenant, as defined in subsection (3) of section 47-283, who (i) is described in subdivision (1) of this subsection, or (ii) is not described in subdivision (1) of this subsection but, during a transition period, as defined in subsectionn (4) of section 47-283, is residing in a conversion condominium created after May 6, 1980 or in any other conversion common interest community created after December 31, 1982, or (iii) is not described in subdivision (1) of this subsection but is otherwise protected as a conversion tenant by public act 80-370, and (B) a tenant who is not a conversion tenant but who is described in subdivision (1) of this subsection if his landlord owns five or more dwelling units in the common interest community in which the dwelling unit is located.
      “(3) As used in this section, ‘complex’ means two or more buildings on the same or contiguous parcels of real property under the same ownership.
      “(b) (1) No landlord may bring an action of summary process or other action to dispossess a tenant described in subsection (a) of this section except for one or more of the following reasons: (A) Nonpayment of rent; (B) refusal to agree to a fair and equitable rent increase, as defined in subsection (c) of this section; (C) material noncompliance with section 47a-ll which materially affects the health and safety of the other tenants or which materially affects the physical condition of the premises; (D) voiding of the rental agreement pursuant to section 47a-31, or material noncompliance with the rental agreement; (E) material noncompliance with the rules and regulations of the landlord adopted in accordance with section 47a-9; (F) permanent removal by the landlord of the dwelling unit of such tenant from the housing market; or (G) bona fide intention by the landlord to use such dwelling unit as his principal residence.
      “(2) The ground stated in subparagraph (G) of subdivision (1) of this subsection is not available to the owner of a dwelling unit in a common interest community occupied by a conversion tenant.
      “(3) A tenant may not be dispossessed for a reason described in subparagraph (B), (F) or (G) of subdivision (1) of this subsection during the term of any existing rental agreement.
      “(c) (1) The rent of a tenant protected by this section may be increased only to the extent that such increase is fair and equitable, based on the criteria set forth in section 7-148c.
      “(2) Any such tenant aggrieved by a rent increase or proposed rent increase may file a complaint with the fair rent commission, if any, for the town, city or borough where his dwelling unit is located; or, if no such fair rent commission exists, may bring an action in the superior court to contest the increase. In any such court proceeding, the court shall determine whether the rent increase is fair and equitable, based on the criteria set forth in section 7-148c.
      “(d) A landlord to determine whether a tenant is a protected tenant, may request proof of such protected status. On such request, any tenant claiming protection shall provide proof of the protected status within thirty days. The proof shall include a statement of a physician in the case of alleged blindness or other physical disability.”
      This statute was amended, effective October 1,1989, by Public Acts 1989, No. 89-254, § 16.

       General Statutes § 47a-l provides in pertinent part: “As used in this chapter and sections 47a-21, 47a-23 to 47a-23e, inclusive, 47a-26a to 47a-26g, inclusive, 47a-35 to 47a-35b, inclusive, 47a-41a, 47a-43 and 47a-46 ....
      “(i) ‘Tenant’ means the lessee, sublessee or person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others or as is otherwise defined by law.”

       The dissent argues that the premise from which the majority opinion proceeds is “fatally flawed” because the majority “fails to address the threshold question of how Quinones’ status was elevated from an occupant to a tenant at sufferance.” The dissent, however, ignores the fact that not only did the trial court find that Quinones was a tenant at sufferance, but that the defendants have not even challenged that finding. The defendants’ statement of the sole issue raised by this appeal reads: “Is a tenant at sufferance entitled to the ‘good cause’ protections of [General Statutes §] 47a-23c?” (Emphasis added.)
      Furthermore, even if the defendants had challenged the trial court’s finding that Quinones was a tenant at sufferance, we conclude that the record adequately supports the trial court’s finding. Therefore, the trial court’s finding was not clearly erroneous. See Practice Book § 4061; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 219-22, 435 A.2d 24 (1980).


author: Shea, J.

text:
    Ann Petriello v. Roy E. Kalman et al.
    (13814)
    (13815)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued April 11
    decision released June 19, 1990

      Beth A. Barrett, with whom, on the brief, was Edward W. Mayer, Jr., for the appellant in Docket No. 13814 (named defendant).

      Joram Hirsch, with whom was Robert B. Adelman, for the appellant in Docket No. 13815, appellee in Docket No. 13814 (plaintiff).

      William J. Garfinkel, for the appellee in Docket No. 13815 (defendant Griffin Hospital).
   Shea, J.

In this medical malpractice action the trial court directed a verdict for the defendant, Griffin Hospital (hospital). The jury, thereafter, returned a verdict for the plaintiff, Ann Petriello, in her action against the named defendant, Roy E. Kalman, a physician. The plaintiff has appealed, claiming error in the direction of the verdict for the hospital. The principal issue in that appeal is whether the hospital had the legal duty to ensure that the plaintiff had given her informed consent to surgical procedures before providing her with preoperative medication. We conclude that the hospital had no such duty. The named defendant has also appealed, challenging the admission of expert testimony and a portion of the charge to the jury. The principal issue in that appeal is whether the trial court correctly instructed the jury that the plaintiff could be awarded compensation for an increased risk of future injury. We conclude that the trial court was correct in giving such an instruction.

The jury could reasonably have found the following facts from the evidence. On April 13, 1984, the plaintiff, who was sixteen weeks pregnant, was seen by the defendant Kalman regarding her complaints of low back pain and vaginal bleeding. Kalman, a specialist in obstetrics, had been treating the plaintiff throughout her pregnancy. As a result of his examination, Kalman diagnosed a possible missed abortion or threatened abortion and, therefore, admitted the plaintiff to the Griffin Hospital later that evening. On the basis of his belief that the plaintiffs child had died, an ultrasound examination was performed the next morning. This test revealed that the child had in fact died in útero. Kalman was advised of the ultrasound results and he then telephoned the plaintiff, who remained at the hospital, informing her that the results of the test indicated fetal death and that he intended to perform, later that afternoon, a surgical procedure known as a dilatation and curettage to remove the fetus from the plaintiffs womb.

At 1:15 p.m., before that procedure was begun, a nurse employed by the hospital administered preoperative medication to the plaintiff. This medication had been prescribed by an anesthesiologist and consisted of 50 milligrams of demerol, 50 milligrams of phenergan and 0.4 milligrams of atropine. The nurse did not speak with Kalman before giving this medication to the plaintiff. Contrary to a policy adopted by the hospital, providing that “[a] patient may not be sent to surgery nor may preoperative medication be given without proper completion of the informed consent form,” the plaintiff received this medication despite the fact that she had not signed the hospital’s informed consent form. The nurse was aware of this policy and also of her duty to ensure that various items on a preoperative checklist had been completed prior to giving a patient preoperative medication. In the plaintiff’s case, this checklist lacked the signature of a nurse to indicate that the plaintiff had signed the hospital’s informed consent form. The nurse testified at trial that she did not know why the informed consent form had not been signed at the time the plaintiff was given the preoperative medication.

After she had been given the preoperative medication, at about 2 p.m., the plaintiff was taken from her room to the surgical holding area. When Kalman arrived, he was told that the plaintiff had been given preoperative medication, but that she had not yet signed the hospital’s informed consent form. Kalman did not expect the plaintiff to have been already medicated, but had anticipated that he would have her sign the informed consent form and that she would then be given the medication. Nonetheless, Kalman, despite the fact that the plaintiff was already under the effect of the medication, had the plaintiff sign the informed consent form and then began the surgical procedure. The signing of the consent form by the plaintiff, as well as by her husband, was witnessed by a nurse who was on duty in the operating room. She noted on the form that the plaintiff was both “alert + oriented” at the time she signed the consent form.

That afternoon, during the procedure to remove the fetus, Kalman, utilizing a suction device, perforated the plaintiff’s uterus and drew portions of her small intestine through the perforation, through her uterus and into her vagina. The plaintiffs expert, Phillip Sullivan, an obstetrician, testified that Kalman had used excessive force in the operation of the suction device and that the perforation had resulted from a deviation from the prevailing standard of care. Kalman, in an attempt to repair the damage to the uterine wall, made a transverse incision on the plaintiffs abdomen and requested the assistance of Jose Flores, a general surgeon. Because he could not adequately explore the plaintiffs abdomen, Flores made another incision perpendicular to the one made by the defendant. Flores repaired the injury to the plaintiffs intestine by means of a bowel resection, removing approximately one foot of the intestine and connecting the two ends of the remaining intestine.

Flores, testifying for the plaintiff, stated that, as a result of the bowel resection, adhesions had more probably than not formed in the plaintiff’s abdomen. He also testified that the plaintiff faces an increased risk of future bowel obstruction as a result of these adhesions, but that he thought the risk was remote. Flores stated that, in his experience, adhesions were a prominent cause of small bowel obstruction and that he had advised the plaintiff, after the surgery, that adhesions would form in her abdomen and that they could result in a future bowel obstruction. The plaintiff testified that she was also advised of this increased risk of future bowel obstruction by Flores’ partner, who was also a physician. The plaintiff’s expert, Sullivan, also testified that the plaintiff was subject to an increased risk of future bowel obstruction and that, based on literature he had consulted, she had an 8 to 16 percent chance of developing such an obstruction.

The plaintiff brought her revised complaint in two counts, alleging that Kalman was negligent in that he: (1) performed the dilatation and curettage without first attempting other nonsurgical methods; (2) perforated the plaintiffs uterus during the surgical procedure; (3) suctioned out portions of the plaintiff’s small intestine during the surgical procedure; and (4) made an improper incision in the plaintiffs abdomen during his attempt to repair the plaintiff’s small intestine. The plaintiff alleged that the hospital was negligent in one or more of the following ways: (1) by permitting Kalman to perform the surgical procedure without having first obtained her informed consent; and (2) by failing to obtain the plaintiffs informed consent itself, before Kalman performed the surgical procedure.

I

The plaintiff claims that the trial court erred by directing a verdict in favor of the hospital. The hospital moved for a directed verdict at the close of the plaintiff’s case, alleging in a written motion that the plaintiff had “offered no evidence that [the hospital’s] alleged negligence caused the plaintiff’s injuries.” The court reserved decision on the motion and Kalman and the hospital proceeded with their cases. At the close of evidence, the hospital renewed its motion orally and added, as a second ground for the motion, that it had no duty either to obtain the plaintiff’s informed consent to the procedure or to ensure, that the defendant had done so. The court granted the motion on two grounds, lack of causation and lack of duty and, subsequently, denied the plaintiff’s motion to set aside the directed verdict. We agree that the hospital had no duty to the plaintiff regarding her informed consent to the surgical procedure performed and conclude, therefore, that the court was correct in directing a verdict in favor of the hospital.

“Negligence is a breach of duty.” Urban v. Hartford Gas Co., 139 Conn. 301, 304, 93 A.2d 292 (1952). The existence of a duty is a question of law and “[o]nly if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.” Shore v. Stonington, 187 Conn. 147, 151-52, 444 A.2d 1379 (1982). If the court determines, as a matter of law, that a defendant owes no duty to a plaintiff, a verdict should be directed because “[i]t is merely reaching more speedily and directly a result which would inevitably be reached in the end.” People’s Savings Bank v. Borough of Norwalk, 56 Conn. 547, 556, 16 A. 257 (1888); Simmons v. Southern Connecticut Gas Co., 7 Conn. App. 245, 250, 508 A.2d 785 (1986). On appeal we must determine whether the court’s conclusion that the hospital owed no duty to the plaintiff with respect to obtaining her informed consent was “legally and logically correct.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980).

The plaintiff argues that the duty involved in this case is the duty of reasonable care that the hospital owed to her as its patient. See Mather v. Griffin Hospital, 207 Conn. 125, 136, 540 A.2d 666 (1988). Having defined the duty, the plaintiff next argues that “the issue is whether the standard of care by which that duty is to be measured required [the nurse] to ensure that [the plaintiff] had signed the written consent form before being given preoperative medication.” Having thus set forth both the duty and the standard of care, the plaintiff claims that there was sufficient evidence presented from which the jury could have concluded that the hospital, by the actions of its nurse, deviated from the standard of care by giving the plaintiff preoperative medication prior to her having signed the informed consent form, in direct violation of the hospital’s policy. Noting that her revised complaint did not set forth this specific theory, the plaintiff argues that the allegations contained in the complaint, nevertheless, did include her “claim that [the nurse] owed a duty to ensure that [the plaintiff] had signed the written consent form before being given preoperative medication.”

At the outset it is necessary that we set forth the several duties the plaintiff claims the hospital owed to her, and resolve the merits of each in turn. First, the plaintiff alleged, in her revised complaint, that the hospital had the duty to obtain her informed consent before allowing Kalman to perform the surgical procedure in this case. We have previously addressed a similar issue in Logan v. Greenwich Hospital Assn., 191 Conn. 282, 465 A.2d 294 (1983), a case in which we concluded that a referring physician, who had not participated in the actual surgical procedure, had no duty to ensure that his patient had given her informed consent to that procedure when the surgery had been performed by another physician. We held, therefore, “that under the circumstances of [that] case [the doctor], as the referring physician, had no obligation to inform the plaintiff of viable alternative procedures but might reasonably have relied upon [another physician], the specialist, to provide such information.” Id., 306.

In Logan, we also upheld the direction of a verdict for the hospital with respect to claims of corporate negligence that included an allegation of failure of the hospital to obtain the plaintiffs informed consent to the operation. “No testimony was presented to indicate that reasonably prudent hospital practice imposed any duty upon this defendant to supervise the physicians who participated in the operation in any of the respects claimed.” Id., 304. Implicitly we rejected the claim that a hospital has a duty with respect to obtaining a patient’s informed consent for a surgical procedure to be performed by a nonemployee physician. Since, in this case, there was no evidence of any involvement by a physician employed by the hospital prior to the start of the surgical procedure and since the plaintiff does not claim it was the duty of the nurse actually to obtain the plaintiffs informed consent prior to administering the preoperative medication, the duty to obtain such consent, prior to beginning the surgical procedure, rested wholly upon Kalman, the plaintiffs attending physician.

Second, the plaintiff claims that the hospital also had the duty to ensure that she had signed the hospital’s informed consent form prior to giving her the preoperative medication. This contention is unsound, however, because it equates the signing of the form with the actuality of informed consent, which it is the sole responsibility of the attending physician to obtain. We have previously stated that, in order to obtain a patient’s informed consent, a “physician’s disclosure should include: ‘(1) the “nature” of the procedure, (2) the “risks” and “hazards” of the procedure, (3) the “alternatives” to the procedure, and (4) the anticipated “benefits” of the procedure.’ ” Logan v. Greenwich Hospital Assn., supra, 292, quoting A. Meisel & L. Kabnick, “Informed Consent to Medical Treatment: An Analysis of Recent Legislation,” 41 U. Pitt. L. Rev. 407, 427 (1980); see Pedersen v. Vahidy, 209 Conn. 510, 521, 552 A.2d 419 (1989). Significantly, we have never held that informed consent must be obtained at any specific time, so long as it is obtained prior to the commencement of the medical treatment under consideration. Further, we have never held that such consent must be given by the patient in writing or that a hospital, whose facilities are utilized by independent physicians, as a kind of surety, must guarantee that informed consent is obtained prior to the commencement of any surgical procedure.

Having concluded that the defendant hospital had no duty to obtain the plaintiff’s informed consent for surgery to be performed by a nonemployee physician or to ensure that such consent was in writing, we next consider the effect of the hospital policy that the nurse concededly violated by medicating the plaintiff for surgery despite the absence of a signed consent form. Although a violation of an employer’s work rules can be viewed as evidence of negligence, such a violation does not establish the applicable duty of the hospital to its patients, since “hospital rules, regulations and policies do not themselves establish the standard of care.” Van Steensburg v. Lawrence & Memorial Hospitals, 194 Conn. 500, 506, 481 A.2d 750 (1984). “[T]he Hospital’s bylaw—which allows surgery only with a patient’s informed consent—does not obligate the Hospital to guarantee that a patient has tendered informed consent.” Mele v. Sherman Hospital, 838 F.2d 923, 925 (7th Cir. 1988); Porter v. Sisters of St. Mary, 756 F.2d 669, 673 (8th Cir. 1985); Wilson v. Lockwood, 711 S.W.2d 545, 549 (Mo. App. 1986); Ackerman v. Lerwick, 676 S.W.2d 318, 320-21 (Mo. App. 1984). “By enacting its bylaw and drafting a consent form, the Hospital sought to increase the likelihood that doctors would warn patients” (emphasis added); Mele v. Sherman Hospital, supra; not take upon itself the obligation to obtain patients’ informed consent prior to the start of surgical procedures performed by independent physicians.

It is quite unlikely that the defendant hospital, in adopting its rule requiring a written consent form to be signed, intended to assume a responsibility greater than the law imposed upon it already. The rule would serve as a directive to any employee physician, for whose wrongful act or omissions the hospital would be liable, to fulfill his duty of obtaining a patient’s informed consent to a surgical procedure. It would also serve as a measure for reminding independent physicians of their duty to obtain such consent before surgery. In this respect, it is significant that the standard operating policies of the hospital included directions that it was “the responsibility of the Operating Room Supervisor or her delegate to check the patient’s chart for the Informed Consent” and that “[i]f a properly signed and completed Informed Consent is not included, surgery shall be delayed until such Informed Consent is obtained.”

The defendant hospital in adopting these rules must have contemplated situations like the present case, in which surgery would be scheduled before the consent form had been signed. In these circumstances the rule required that surgery be delayed until the form had been signed to manifest the requisite informed consent, but the delegation to the operating room supervisor of the responsibility for ensuring that the form had been signed could hardly have been intended to require her to fulfill the function of the attending physician in obtaining an actual informed consent. Nor can these rules be deemed to have authorized the operating room nurse to countermand the judgment of the attending physician as to whether the patient had given an informed consent.

The operating room nurse testified that, although she was present when Kalman obtained the plaintiff’s signature on the informed consent form, it was his responsibility to obtain that signature, and that she did not have the training to discuss with any patient the risks, benefits and alternatives to any surgical procedure. Kalman admitted that he was made aware of the fact that the plaintiff had already been given preoperative medication prior to completion of the informed consent form.

In light of all these factors, we conclude that the hospital was not obligated, as suggested by the plaintiff’s claim, to conduct an in-depth inquiry into the quality of the plaintiff’s consent to the surgical procedure performed by Kalman. As Kalman testified, it was his responsibility, and his responsibility alone, to obtain the informed consent of his patient, prior to commencing any surgical procedure. At the time he arrived in the operating room, expecting an unmedicated patient, Kalman was confronted by the fact that: (1) his patient had already been medicated; (2) she had not signed the hospital’s informed consent form; (3) he could not perform surgery until the form had been signed; and (4) he was of the opinion that there was an urgent need for the contemplated procedure. Under these circumstances, and in line with our holding in Logan v. Greenwich Hospital Assn., we conclude that the hospital had no obligation to conduct an on-the-spot inquiry into the actions taken by the defendant. Since Kalman shouldered the obligation to obtain his patient’s informed consent, the hospital could reasonably have relied upon his judgment and the manner in which he resolved the situation presented to him. By its verdict the jury evidently concluded that his resolution of the matter was improper, but that does not detract from the fact that it was his problem to resolve and his responsibility to account for his actions at a later time. The hospital was under no duty to take this obligation from him.

II

In his appeal, the defendant claims that the trial court erred by: (1) allowing expert testimony concerning the plaintiff’s increased risk of a bowel obstruction; (2) charging the jury that the plaintiff could be compensated for her fear that such an obstruction will occur; and (3) charging the jury that the plaintiff could be compensated for the increased risk that she will suffer a future bowel obstruction. We conclude that the expert testimony was admissible and that the court correctly instructed the jury.

A

The defendant claims that the plaintiff should not have been permitted to present any testimony regarding her increased susceptibility to a future bowel obstruction resulting from the defendant’s actions. The defendant claims that the court erred “in allowing Dr. Flores and Dr. Sullivan to speculate on the Plaintiff’s possibilities of developing a bowel obstruction,” since “an expert medical witness may only testify on a plaintiffs probability of incurring future injuries . . . .” See Healy v. White, 173 Conn. 438, 443-44, 378 A.2d 540 (1977); Johnson v. Connecticut Co., 85 Conn. 438, 439-41, 83 A. 530 (1912). During a hearing conducted as a result of the defendant’s motion in limine, the plaintiff argued that the evidence concerning her increased risk of bowel obstruction was admissible for three reasons: (1) as evidence of her fear of future disability; (2) as evidence that her fear was rational; and (3) as evidence of a presently compensable injury. We conclude that the evidence was admissible for all three purposes.

The defendant has chosen to ignore the fact that the plaintiff, in her revised complaint, alleged that as a result of the defendant’s actions she “experienced extreme emotional distress.” At trial, she sought to prove that her emotional distress was caused, at least in part, by her fear of suffering an obstruction of her bowel at some later date and that she should be compensated for that fear. We have previously held that evidence concerning an increased risk of injury, although insufficient to justify an award of damages based upon the occurrence of that injury in the future, may, nevertheless, be presented to the jury as evidence of emotional distress. Figlar v. Gordon, 133 Conn. 577, 585, 53 A.2d 645 (1947). Our holding in Figlar was based on the unremarkable proposition that a danger of future injury is “a present fact and the jury [is] entitled to take into consideration anxiety resulting therefrom.” Id. On the basis of that holding, the jury was entitled, in this case, to hear testimony that the plaintiff had been informed of the increased risk of future bowel obstruction, as well as testimony regarding any anxiety this information produced in the plaintiff’s mind.

The expert testimony, regarding the plaintiff’s increased risk of suffering a future bowel obstruction, was also admissible on the issue of whether the plaintiff’s anxiety was rationally based. Although “[s]ome courts have permitted recovery where there is not even a possibility that the feared disability will develop . . . [mjore often there is a requirement that the plaintiff’s anxiety have some reasonable basis.” D. Faulkner & K. Woods, “Fear of Future Disability - An Element of Damages in a Personal Injury Action,” 7 W. New Eng. L. Rev. 865, 877-78 (1985). “ ‘[Ajnxiety about a completely fictitious or imagined consequence, having no reasonable basis, is not a recoverable element.’ ” LaBieniec v. Baker, 11 Conn. App. 199, 207, 526 A.2d 1341 (1987), quoting annot. 71 A.L.R.2d 338, 342 (1960). Thus, the evidence objected to by the defendant was admissible to show that the plaintiff’s anxiety regarding the possibility of a future bowel obstruction was both subjectively held and objectively reasonable.

Finally, given that we resolve the question of the compensability of an increased risk of future injury in favor of the plaintiff, the expert testimony, regarding the extent of that risk in this case, was also admissible for the purpose of showing how likely it was that the plaintiff would experience a bowel obstruction at some later date.

B

The defendant also claims that, even if the expert testimony was admissible, the court erred in allowing the jury to award the plaintiff compensation for her fear of a future bowel obstruction, since the evidence established that there was only a possibility that the plaintiff would develop a bowel obstruction and this possibility was too speculative to support the inclusion in the verdict of damages for such a fear. The defendant argues that “the Plaintiffs [chance] of incurring a bowel obstruction is ‘so remote’ that it is not a proper element of damages.” We conclude that the evidence presented was sufficient to establish a reasonable basis for the plaintiff’s fear that she will suffer from a future bowel obstruction and, therefore, was also sufficient to support compensation for that fear. Although one of the plaintiff’s expert witnesses, Flores, testified that there was a “very remote” chance that such a blockage would occur, the testimony of another expert, Sullivan, presented to the jury the results of research conducted by him which indicated that, according to two studies he consulted, there was between an 8 and 16 percent chance that the plaintiff would suffer a future bowel obstruction as a result of the bowel resection necessitated by the defendant’s actions. Thus, even if Flore’s testimony was insufficient to establish a reasonable ground for the plaintiff’s anxiety, we conclude that the jury could have found a sufficient basis in the opinion rendered by Sullivan. See Shelnitz v. Greenberg, 200 Conn. 58, 67, 509 A.2d 1023 (1986) (“[w]e need not determine whether [the witness’] testimony on causation could have provided the jury with evidence of a causal connection beyond mere speculation because the plaintiff’s other expert witness . . . provided the needed testimony”). We conclude, therefore, that the court correctly instructed the jury that it might award the plaintiff damages for her fear of the increased risk that she will someday suffer from a bowel obstruction.

C

The defendant’s principal claim on appeal is that the court erred by instructing the jury that the plaintiff could be awarded compensation for the increased risk that the defendant’s negligence would cause her to experience a bowel obstruction at some future date. The defendant excepted to this instruction at trial upon the ground that the “intestinal blockage [was] purely speculation” and had not been shown to be “reasonably probable.” He raises essentially the same claim on appeal.

The defendant contends that the evidence in this case established no reasonable probability that the plaintiff would suffer a bowel obstruction at some future date, and, therefore, the trial court incorrectly instructed the jury that the plaintiff should be compensated for whatever risk there was of some future injury. The jury heard expert testimony that the risk of the plaintiff suffering a future bowel obstruction was somewhere between 8 and 16 percent. There is no question that such a degree of probability of the occurrence of future injury would not support an award of damages to the same extent as if that injury had in fact occurred. In Healy v. White, supra, 444, we reasoned that in order to be awarded full compensation for an injury that has not yet manifested itself, a plaintiff must show that there exists a reasonable probability that the injury will in fact occur. Relying upon the case of Davis v. P. Gambardella & Son Cheese Corporation, 147 Conn. 365, 373, 161 A.2d 583 (1960), in which we concluded that a “fifty-fifty chance” could not support an award of damages presupposing permanent injury, we reasoned that “[i]n such a situation the ratio of probability is exactly even, and the witness ... is testifying as to possibilities and not probabilities.” Healy v. White, supra. We went on to state that “ ‘[flor medical opinion testimony to have any probative value, it must at least advise the jury that the inference drawn by the doctor is more probably correct than incorrect. If the probabilities are in balance, the matter is left to speculation. Speculation filtered through a jury is still speculation.’ (Emphasis added.)” Id., quoting Crawford v. Seufert, 236 Or. 369, 375, 388 P.2d 456 (1964).

In Healy, we affirmed our adherence to the prevailing all or nothing standard for compensating those who have either suffered present harm and seek compensation as if the harm will be permanent, or have suffered present harm and seek compensation for possible future consequences of that harm. In essence, if a plaintiff can prove that there exists a 51 percent chance that his injury is permanent or that future injury will result, he may receive full compensation for that injury as if it were a certainty. If, however, the plaintiff establishes only a 49 percent chance of such a consequence, he may recover nothing for the risk to which he is presently exposed. Although this all or nothing view has been adopted by a majority of courts faced with the issue, the concept has been severely criticized by numerous commentators. By denying any compensation unless a plaintiff proves that a future consequence is more likely to occur than not, courts have created a system in which a significant number of persons receive compensation for future consequences that never occur and, conversely, a significant number of persons receive no compensation at all for consequences that later ensue from risks not rising to the level of probability. This system is inconsistent with the goal of compensating tort victims fairly for all the consequences of the injuries they have sustained, while avoiding, so far as possible, windfall awards for consequences that never happen.

In seeking to enforce their right to individualized compensation, plaintiffs in negligence cases are confronted by the requirements that they must claim all applicable damages in a single cause of action; see Peck v. Jacquemin, 196 Conn. 53, 70 n.19, 491 A.2d 1043 (1985); Gagne v. Norton, 189 Conn. 29, 32, 453 A.2d 1162 (1983); Viall v. Lionel Mfg. Co., 90 Conn. 694, 699, 98 A. 329 (1916); 4 Restatement (Second), Torts § 910, comment d; and must bring their actions no “more than three years from the date of the act or omission complained of.” General Statutes § 52-584. Under these circumstances, no recovery may be had for future consequences of an injury when the evidence at trial does not satisfy the more probable than not criterion approved in Nealy, despite a substantial risk of such consequences. Conversely, a defendant cannot seek reimbursement from a plaintiff who may have recovered for a future consequence, which appeared likely at the time of trial, on the ground that subsequent events have made that consequence remote or impossible. Our legal system provides no opportunity for a second look at a damage award so that it may be revised with the benefit of hindsight. In cases presenting similar problems, some courts “have liberalized the rules for causal proof so that any substantial chance of future harm might be sufficient to permit a recovery.” D. Dobbs, R. Keeton, D. Owen & W. Keeton, Torts (5th Ed. Sup. 1988) § 30, p. 26. Further, some courts have counteracted the strict application of the rule of probability in proving damages “where the fact of damage has been established and the question to be decided is the extent of that damage.” (Emphasis in original.) 4 F. Harper, F. James & O. Gray, Torts (2d Ed.) § 25.3, p. 509.

If the plaintiff in this case had claimed that she was entitled to compensation to the extent that a future bowel obstruction was a certainty, she would have been foreclosed from such compensation solely on the basis of her experts’ testimony that the likelihood of the occurrence of a bowel obstruction was either very remote or only 8 to 16 percent probable. Her claim, however, was for compensation for the increased risk that she would suffer such an obstruction sometime in the future. If this increased risk was more likely than not the result of the bowel resection necessitated by the defendant’s actions, we conclude that there is no legitimate reason why she should not receive present compensation based upon the likelihood of the risk becoming a reality. When viewed in this manner, the plaintiff was attempting merely to establish the extent of her present injuries. She should not be burdened with proving that the occurrence of a future event is more likely than not, when it is a present risk, rather than a future event for which she claims damages. In our judgment, it was fairer to instruct the jury to compensate the plaintiff for the increased risk of a bowel obstruction based upon the likelihood of its occurrence rather than to ignore that risk entirely. The medical evidence in this case concerning the probability of such a future consequence provided a sufficient basis for estimating that likelihood and compensating the plaintiff for it.

This view is consistent with the Second Restatement of the Law of Torts, which states, in § 912, that “[o]ne to whom another has tortiously caused harm is entitled to compensatory damages for the harm if, but only if, he establishes by proof the extent of the harm and the amount of money representing adequate compensation with as much certainty as the nature of the tort and the circumstances permit.” Damages for the future consequences of an injury can never be forecast with certainty. With respect to awards for permanent injuries, actuarial tables of average life expectancy are commonly used to assist the trier in measuring the loss a plaintiff is likely to sustain from the future effects of an injury. Such statistical evidence does, of course, satisfy the more likely than not standard as to the duration of a permanent injury. Similar evidence, based upon medical statistics of the average incidence of a particular future consequence from an injury, such as that produced by the plaintiff in this case, may be said to establish with the same degree of certitude the likelihood of the occurrence of the future harm to which a tort victim is exposed as a result of a present injury. Such evidence provides an adequate basis for measuring damages for the risk to which the victim has been exposed because of a wrongful act.

The probability percentage for the occurrence of a particular harm, the risk of which has been created by the tortfeasor, can be applied to the damages that would be justified if that harm should be realized. We regard this system of compensation as preferable to our present practice of denying any recovery for substantial risks of future harm not satisfying the more likely than not standard. We also believe that such a system is fairer to a defendant, who should be required to pay damages for a future loss based upon the statistical probability that such a loss will be sustained rather than upon the assumption that the loss is a certainty because it is more likely than not. We hold, therefore, that in a tort action, a plaintiff who has established a breach of duty that was a substantial factor in causing a present injury which has resulted in an increased risk of future harm is entitled to compensation to the extent that the future harm is likely to occur. See Lindsay v. Appleby, 91 Ill. App. 3d 705, 714, 414 N.E.2d 885 (1980); Feist v. Sears, Roebuck & Co., 267 Or. 402, 412, 517 P.2d 675 (1973); Schwegel v. Goldberg, 209 Pa. Super. 280, 287-88, 228 A.2d 405 (1967).

Applying this holding to the facts of this case, we conclude that the trial court correctly instructed the jury that the plaintiff could be awarded compensation for the increased likelihood that she will suffer a bowel obstruction some time in the future. The court’s instruction was fully in accord with our holding today. The court first set forth the defendant’s duty toward the plaintiff and then instructed the jury that “[i]f you find the defendant negligent and that such negligence was a substantial factor in increasing the plaintiff’s risk of an intestinal blockage then the plaintiff is entitled to compensation for this element of damage.” This instruction was a correct statement of the applicable law of causation; Mahoney v. Beatman, 110 Conn. 184, 197-98, 147 A. 762 (1929); and advised the jurors to award damages only if they were satisfied that there existed a causal relationship between the defendant’s actions, the plaintiff’s present injury and the increased risk to which she was exposed. Under these circumstances, we conclude that the trial court’s instructions correctly allowed this issue to be considered by the jury.

The judgment of the trial court is affirmed.

In this opinion the other justices concurred.

       The defendant was not employed by the hospital, but, rather, was an independent physician possessing privileges at the hospital.

       The defendant testified that he viewed the signing of the form as a “technicality,” since, in his opinion, he had already obtained the informed consent of the plaintiff during a visit with her the night before and a telephone conversation with her that morning. The defendant stated that he had not discussed any alternative procedures with the plaintiff since he believed that there was no viable alternative to the dilatation and curettage. The plaintiffs expert, Phillip Sullivan, an obstetrician, testified that the plaintiff could and should have been allowed to deliver the fetus without surgical intervention. The plaintiff testified that had she been informed of the risks, benefits and alternatives to the dilatation and curettage, she would not have consented to it.

       This assertion was hotly disputed by the plaintiff at trial, due to the prior administration of the preoperative medication.

       See Smith v. Boston & Maine R. Co., 87 N.H. 246, 258, 177 A. 729 (1935), new trial ordered, 88 N.H. 430, 190 A. 697, aff'd, 88 N.H. 436, 191 A. 833 (1937); Murphy v. Penn Fruit Co., 274 Pa. Super. 427, 436, 418 A.2d 480 (1980).

       See Ferrara v. Galluchio, 5 N.Y.2d 16, 20, 152 N.E.2d 249, 176 N.Y.S.2d 996, reh. denied, 5 N.Y.2d 793 (1958); Howard v. Mt. Sinai Hospital, Inc., 63 Wis. 2d 515, 519, 217 N.W.2d 383, aff'd, 63 Wis. 2d 523a, 219 N.W.2d 576 (1974).

       The defendant objects to the following portion of the court’s instructions to the jury: “Anxiety over future consequences of an injury is an element of mental suffering that is compensable.”

       Specifically, the defendant objects to the following portion of the court’s instructions to the jury: “The plaintiff claims that she has suffered an increased risk of intestinal blockage as a result of the defendant’s negligence. [One] who undertakes to render service for another is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking. If his failure to exercise such care increases the risk of such harm, if you find the defendant negligent and that such negligence was a substantial factor in increasing the plaintiff’s risk of an intestinal blockage then the plaintiff is entitled to compensation for this element of damage.”

       “The traditional American rule ... is that recovery of damages based on future consequences may be had only if such consequences are ‘reasonably certain.’ ... To meet the ‘reasonably certain’ standard, courts have generally required plaintiffs to prove that it is more likely than not (a greater than 50% chance) that the projected consequence will occur. If such proof is made, the alleged future effect may be treated as certain to happen and the injured party may be awarded full compensation for it; if the proof does not establish a greater than 50% chance, the injured party’s award must be limited to damages for harm already manifest.” Wilson v. Johns-Manville Sales Corporation, 684 F.2d 111, 119 (D.C. Cir. 1982).

       See D. Rosenberg, “The Causal Connection in Mass Exposure Cases: ‘A Public Law’ Vision of the Tort System,” 97 Harv. L. Rev. 851, 862-66 (1984); J. King, “Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences,” 90 Yale L.J. 1353, 1376-81 (1981); K. Cooper, “Assessing Possibilities in Damage Awards—The Loss of a Chance or the Chance of a Loss,” 37 Saskatchewan L. Rev. 193, 215-25 (1973); comment, “Decreasing the Risks Inherent in Claims for Increased Risk of Future Disease,” 43 U. Miami L. Rev. 1081, 1095-98 (1989); see also DePass v. United States, 721 F.2d 203, 208 (7th Cir. 1983) (Posner, J., dissenting) (“[a] tortfeasor should not get off scot-free because instead of killing his victim outright he inflicts an injury that is likely though not certain to shorten the victim’s life”).

       We note that compensation in relation to the likelihood of the occurrence of a future injury, or “simple probability” compensation, is, according to one commentator, “entrenched in the measurement of damages in English law . . . . ” K. Cooper, “Assessing Possibilities in Damage Awards — The Loss of a Chance or the Chance of a Loss,” 37 Saskatchewan L. Rev. 193, 209 (1973); see Davies v. Taylor, 3 W.L.R. 801, 804E, 3 All E.R. 836 (1972); Jones v. Griffith, 1 W.L.R. 795, 801D, 2 All E.R. 1015 (1969); see also Davies v. Taylor, 3 W.L.R. 515, 525G, 3 All E.R. 1259 (1971) (Cairns, L.J., dissenting) (“[i]f a plaintiff has met with an accident and is suffering from arthritis, the question whether the arthritis is due to the accident falls (sic) to be decided on a balance of probabilities. If, however, he is free from arthritis at the time of the trial but there is medical evidence that he may have that condition in the future as a result of the accident, say a 25 per cent chance of it, then he will be awarded damages for this prospect scaled down in proportion to the risk”).

       To the extent that the following cases hold otherwise, they are overruled: Healy v. White, 173 Conn. 438, 378 A.2d 540 (1977); Davis v. P. Gambardella & Son Cheese Corporation, 147 Conn. 365, 373, 161 A.2d 583 (1960); Sheiman v. Sheiman, 143 Conn. 222, 225, 121 A.2d 285 (1956); Johnson v. Connecticut Co., 85 Conn. 438, 439-41, 83 A. 530 (1912).


author: Covello, J. Shea, J.,

text:
    The Travelers Indemnity Company v. Edward J. Malec, Administrator (Estate of Joanne M. Malec), et al.
    (13894)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued April 10
    decision released June 19, 1990

      Geoffrey Naab, for the appellant (plaintiff).

      Martin P. Gold and Richard H. Alden, with whom was J. Brian Gaffney, for the appellees (named defendant et al.).
   Covello, J.

This is an appeal from a judgment of the trial court confirming a $1,000,000 underinsured motorist arbitration award. The sole issue is whether the insured properly elected to accept less uninsured motorist insurance than the statutory amount required by General Statutes § 38-175c (a) (2). We agree with the trial court’s conclusion that the purported election was ineffective and affirm the judgment.

. The relevant facts are as follows. On May 18, 1982, the plaintiff, The Travelers Indemnity Company (Travelers), had in force a business automobile liability policy insuring American Red Cross. Attached to the policy was a document dated May 18, 1982, executed in behalf of American Red Cross, entitled “Rejection of or Election of Minimum Limits Uninsured and Underinsured Motorists Insurance.” The document stated that “the undersigned insured rejects uninsured motorist coverage and underinsured motorists insurance in all states where such rejection is permitted by law. In those states where such rejection is not permitted, the undersigned elects uninsured motorists insurance limits which are the lesser of the mandatory limits or the financial responsibility limits.” At the time, § 38-175c required uninsured motorist coverage in the amount of $20,000 for bodily injury or for death.

On July 5, 1983, over one year later, the General Assembly enacted Public Acts 1983, No. 83-461, amending § 38-175c (a) (2). It required that every automobile liability policy “issued or renewed on and after July 1, 1984,” was to have uninsured motorist coverage equal to the liability coverage of the policy “unless the insured requests in writing a lesser amount . . . .” The American Red Cross never requested any lesser amount as the parties responsible for such a decision at American Red Cross were never aware that such a statutory requirement then existed.

On July 1,1984, Travelers reissued its business automobile policy to American Red Cross. The policy provided $1,000,000 of liability coverage and $40,000 of uninsured/underinsured motorist coverage. Thus, unless the American Red Cross election of May 18, 1982, constituted a request for a lesser amount of coverage within the meaning of the later amended § 38-175c (a) (2), the uninsured motorist coverage, by operation of law, would be $1,000,000, the amount equal to the liability coverage.

On February 7,1985, Joanne Malee, Ruth Glahn and Katherine Mazzaferro, were involved in a two car collision in Southington. The driver of the other car caused the accident. Malee and Glahn died in the crash and Mazzaferro was seriously injured. The insurance carrier for the other vehicle paid each of the claimants $100,000.

Unable to agree on whether the Travelers policy provided $1,000,000 or $40,000 of underinsured motorist coverage, the parties submitted the issue to arbitration. The arbitration panel found that the May 18,1982 election of minimum coverage by American Red Cross failed to satisfy the request for a lesser amount of coverage required by § 38-175c (a) (2) and therefore, the underinsured motorist coverage was $1,000,000, i.e., the amount of the liability coverage.

Travelers filed an application in Superior Court to set aside the arbitration ruling.* * The trial court, Hammer, J., concluding, inter alia, that “neither Travelers nor the Red Cross took any steps to comply with the express requirements of the statute (i.e. § 38-175c (a) (2)) with specific reference to the policy issued on July 1, 1984,” confirmed the award. Travelers appealed to the Appellate Court. We thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

On appeal, Travelers claims that its insured’s written election of May 18,1982, constituted a continuing directive to Travelers to provide the minimum uninsured/underinsured motorist coverage (UM coverage) permitted by law, and thus, the May 18,1982 election served as an anticipatory request for a lesser amount of coverage as required by the subsequently amended statute. We do not agree.

Prior to the enactment of § 38-175c; see Public Acts 1967, No. 510; UM coverage, although available, was not required. Coverage was limited to the amount requested by the insured. In 1969, § 38-175c was amended to require parity of UM coverage with the minimum limits of liability coverage required by General Statutes § 14-112 (a). See Public Acts 1969, No. 202. In 1983, § 38-175c was again amended now to require parity of UM coverage with the amount of liability coverage purchased by the insured unless the insured specifically requested a lesser amount. See Public Acts 1983, No. 83-461. Thus, examination of the recent history of § 38-175c discloses: (1) a heightened legislative interest in uninsured motorist protection; (2) a mandate to raise the amount of this protection; and (3) an intention to increase the public’s consciousness as to the availability of this kind of insurance by requiring increased coverage unless the insured specifically requested otherwise. “A statute is to be construed by considering its legislative history, language, purpose and the circumstances surrounding its enactment.” Nationwide Ins. Co. v. Gode, 187 Conn. 386, 395, 446 A.2d 1059 (1982).

We have no doubt that the General Assembly contemplated that an insured should make a purposeful and knowing decision to request a lesser amount of UM coverage. The legislative history of Public Acts 1983, No. 83-461 demonstrates the importance that the legislature attached to specific awareness of the content of the statute: “Under sub-section 2, it would require each insured who purchases more than the legally required amount of liability insurance would [sic] receive the same amount of uninsured motorist coverage. The insured would have an opportunity to waive in writing the additional uninsured motorist coverage. This change would increase the consumer’s awareness of the value of low-cost uninsured motorist coverage which protects the insured and his family members. Apparently many drivers purchase $100,000.00 or more of liability coverage but leave their uninsured motorist coverage at the minimum of $20,000.00-$40,000.00. Sub-section 2 which gives such a driver an increased amount of uninsured motorist coverage, unless he makes a conscious decision not to purchase it.” (Emphasis added.) 26 S. Proc., Pt. 9,1983 Sess., p. 3055, remarks of Senator Wayne A. Baker.

Section 38-175c (a) (2) mandates “uninsured motorist coverage with limits . . . equal to those purchased [by the insured] to protect against loss resulting from the liability imposed by law unless the insured requests in writing a lesser amount . . . .” (Emphasis added.) The verb speaks in the present tense. The statute does not say “requested” nor does it say “may have requested in the past.” We are entitled to presume that if the legislature intended that past acts could constitute compliance with the mandate of requests for a lesser amount pursuant to the statute, language to that effect would appear in the statute. “[W]hen the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent. State v. White, 204 Conn. 410, 421, 528 A.2d 811 (1987); Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 54-55, 523 A.2d 477 (1987).” American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987).

Section 38-175c (a) (2) further provides: “Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by the insured.” (Emphasis added.) The adjective refers to succeeding or following renewals. There is no reference to requests for lesser amounts that may have accompanied prior renewals of coverage.

Finally, we observe that although the amendment was enacted on July 5, 1983, its effective date was stayed almost one full year to July 1,1984. In so doing, the legislature presumably intended to allow insurance carriers to notify their insureds of the act’s new consequences and to furnish time thereafter for them to request the lesser amount of coverage.

Adoption of Travelers’ argument would require us to overlook the fact that the American Red Cross election of minimum limits executed in May, 1982, seeks to comply with the terms of a statute that did not exist until July, 1983, and was not effective until July 1, 1984. Further, the claim that this constituted a conscious request for a lesser amount pursuant to the statute is irreconcilable with the fact that neither Travelers nor American Red Cross in negotiating the insurance contract was even aware that the 1983 amendment to the statute existed.

In sum, we conclude that in its enactment of § 38-175c (a) (2), the legislature intended that there be absolute parity between liability coverage limits and UM coverage limits as of July 1, 1984, and that any reductions in UM coverage would require a request for a lesser amount to be made after that date.

The judgment is affirmed.

In this opinion Peters, C. J., and Hull, J., concurred.

Shea, J.,

with whom Callahan, J., joins, dissenting. I disagree with the conclusion reached by the majority that the document attached to the business automobile liability policy issued by the plaintiff to insure American Red Cross fails to satisfy the exception to the mandate of General Statutes § 38-175c (a) (2) for uninsured motorist coverage limits equal to liability coverage limits, “unless the insured requests in writing a lesser amount.” This rejection form, signed by an officer of the insured, unambiguously states that the insured “elects uninsured motorists insurance limits which are the lesser of the mandatory limits or the financial responsibility limits.” Under § 38-175c (a) (1) that directive would afford uninsured motorists coverage of $20,000 per person, while the liability coverage limit is $1,000,000.

The majority relies upon the fact that § 38-175c (a) (2) uses the present tense, “requests,” rather than “requested” and specifically makes “such written request” applicable to “subsequent renewals of coverage.” It also maintains that because the request in this case preceded the enactment of the provision involved, it cannot be deemed to satisfy the statutory requirement for a written request. This analysis ignores the fact that the request of American Red Cross for the minimum uninsured motorist coverage permitted by law was a continuing directive that remained in force from May 18, 1982, when it was executed, until long after the date of the accident, February 7, 1985. The undisputed testimony indicated that American Red Cross sought to minimize its insurance costs by instructing its insurer to provide only the minimum coverage required in each state where it conducted its operations, that this was a deliberate decision fully agreed upon between the insurer and the insured, and that policies reflecting this understanding had been issued each year accordingly. Under the terms of these policies, American Red Cross is a self-insurer for the first $250,000 of any claim filed during the policy year. Its purpose in executing the request form obviously was to obtain the least costly coverage permitted by law and it instructed its insurer to achieve that result with respect to each of the fifty states in which it operated, regardless of the changes that might be made in the laws of a particular state during the policy period. It is a strained construction of the statutory language to hold that such a plainly continuing directive does not satisfy the requirement of § 38-175c (a) (2) for a written request for uninsured motorist coverage less than the liability limit of the policy.

In Abbott v. California State Auto Assn., 68 Cal. App.3d 763, 772, 137 Cal. Rptr. 580 (1977), a letter from an employer to its insurer requesting “that ‘uninsured motorists coverage not be carried except in states where such coverage is mandatory’ ” was held to be effective in California, where such coverage was not mandatory, and to comply with a statutory requirement that “ ‘[t]he insurer and any named insured, prior to or subsequent to the issuance or renewal of a policy, may, by agreement in writing, delete the provision covering damage caused by an uninsured motor vehicle .. . .’ ” Id., 772 n.6. In Robinson v. State Farm Mutual Auto Ins. Co., 23 Cal. App. 3d 953, 100 Cal. Rptr. 565 (1972), a waiver executed in connection with the original issuance of a policy was held to apply to subsequent renewals even before the California statute contained such a provision expressly. In Hellerstedt v. Old Republic Ins. Co., 429 N.W.2d 677, 679 (Minn. App. 1988), the requirement of a Minnesota statute that uninsured motorist coverage be offered to an insured was held to be satisfied when the insured had requested a prior insurer in issuing a fleet policy to provide “only the insurance required by law on a per state basis,” declining all optional coverage, and directed its present insurer to issue a similar policy. In Goode v. Daugherty, 694 S.W.2d 314 (Tenn. App. 1985), the exception in a statute similar to § 38-175c (a) (2) allowing an insured to select in writing lower uninsured motorist limits than those otherwise mandated was deemed met by the execution of forms selecting such lower limits about two years before the statute became effective. I would follow these precedents, which give effect to the clear understanding between the insured and its insurer as reflected in the written documents evidencing their intentions, rather than construe § 38-175c (a) (2) in such a manner as to frustrate those unambiguously expressed intentions, as the majority has done.

Accordingly, I dissent.

       General Statutes (Rev. to 1981) § 38-175c (a) (1) provided: “Every such [automobile liability] policy shall provide insurance, herein called uninsured motorist coverage . . . with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112 . . . .” General Statutes (Rev. to 1981) § 14-112 (a) provided: “[T]he commissioner shall require . . . proof of financial responsibility to satisfy any claim for damages by reason of personal injury to, or the death of, any one person, twenty thousand dollars . . . .”

       General Statutes (Rev. to 1983) § 38-175c (a) (2), as amended by Public Acts 1983, No. 83-461, provided: “Notwithstanding any provision of this section to the contrary, every such policy issued or renewed on and after July 1,1984, shall provide uninsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless the insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by the insured.”

       The Travelers policy provided: “If we and an insured disagree whether the insured is legally entitled to recover damages from the owner or driver of an uninsured motor vehicle, or do not agree as to the amount of damages, the insured may make a written demand for arbitration.”

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