author: Shea, J. Dannehy, J., Callahan, J.,

text:
    Dorothy Lamb et al. v. J. William Burns, Commissioner of Transportation
    (12730)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.
    Argued November 5, 1986
    decision released January 27, 1987

      Eugene A. Cooney, for the appellant (defendant).

      William R. Hotter, with whom were Wesley W. Horton and Mario Paul Mikolitch, for the appellees (plaintiffs).
   Shea, J.

This action was brought against the commissioner of transportation for the state of Connecticut pursuant to General Statutes § 13a-144 to recover for personal injuries sustained by the plaintiffs when the car in which they were riding passed over an ice patch, swerved out of control, and collided with a bridge abutment. Following a jury trial bifurcated on the issues of liability and damages, the court rendered judgment in accordance with verdicts in favor of the plaintiffs awarding them a total of $342,500. This appeal concerns various issues relating to the trial court’s (1) restrictions upon the defendant’s voir dire examination of prospective jurors, and (2) jury instructions that negligence on the part of the state police could provide a basis upon which to find against the defendant. We find error with respect to the first issue only and remand for a new trial.

The following facts do not appear to be in dispute: On a Saturday afternoon, January 22,1983, the plaintiff Dorothy Lamb was driving her car on Route 2A in Preston. Her three children, also plaintiffs, were passengers in the car. At approximately 4:15 p.m., the plaintiffs’ car, after having rounded a curve in the road near the Brookside Inn, skidded across an ice patch and struck a guard post and a concrete bridge abutment. As a result of the accident, all of the plaintiffs were seriously injured.

At about 3 p.m. on the same day, Jean Webster had been driving past the Brookside Inn on Route 2A when her car slid across ice and barely missed careening into an embankment. A few minutes later she told her husband of this incident, which he immediately reported to the state police. Although the state police had “had a couple of complaints on that already,” only then, at approximately 3:30 p.m., did they assign a state trooper, Gerald Luty, to investigate the road condition in the area of the Brookside Inn. Luty arrived at the inn within ten minutes, saw that “one or two . . . vehicles as they came around the corner slid a little bit on the ice,” and, considering the road condition to be hazardous, radioed the barracks requesting that a sand truck be sent. Luty next lit some warning flares rated to burn for thirty minutes and placed them in the highway fence posts and on the ground. Expecting that the sand truck would arrive before the flares had expired, Luty left the scene to check another area. The accident involving the plaintiffs occurred before the sand truck arrived, but after the flares had expired.

After having received Luty’s request that a sand truck be sent to the Brookside Inn, the desk officer at the state police barracks telephoned Llewellyn Palmer, a department of transportation (DOT) supervisor, at his home, in accordance with a procedure that had been established between the DOT and the state police. Because DOT offices are staffed only Monday through Friday from 8 a.m. to 3:30 p.m., the DOT distributes to state and local police a list of the home telephone numbers of DOT maintenance employees for use at other times. Palmer called Roland Gauthier, his crew leader, at about 3:45 p.m., assigning him the task of sanding along Route 2A “and other spots.” Gauthier then called a coworker for assistance before driving approximately five miles to the DOT garage. At the garage, after having waited for his coworker for about ten minutes, Gauthier received a radio call directing him to go immediately to Route 2A from a DOT superintendent who had come upon the plaintiffs’ accident.

I

The defendant attempted to ask the following questions during the voir dire examination of a prospective juror: (1) “If you knew nothing else about a case coming in here to be a juror except that the plaintiff was injured, now would you on that basis alone think that the jury ought to give that person some money?” and (2) “[I]f you met a person when you were walking down the street and that person exhibited some signs of injury or was disabled, would you feel feelings of sympathy for that person?” The court sustained the plaintiffs’ objections to those questions because the former, it said, “infring[ed] on one of the areas that is not permitted, that is, the juror’s knowledge of the law,” and the latter “is irrelevant on the issue of prejudice.” The defendant contends that the trial court thus erroneously thwarted the defendant’s legitimate objective of determining which prospective jurors were most apt to be hindered in making factual assessments at trial by feelings of sympathy. We agree.

Section 19 of article first of the constitution of Connecticut, as amended by article IV, states in part: “ ‘The right of trial by jury shall remain inviolate .... In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law. The right to question each juror individually by counsel shall be inviolate.' ” See State v. Marsh, 168 Conn. 520, 521, 362 A.2d 523 (1975). Further, General Statutes § 51-240 provides in part: “(a) In any civil action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or as to his interest, if any, in the subject matter of the action, or as to his relations with the parties thereto.” We have stated that although the trial court is vested with wide discretion in respect to the extent of the voir dire examination, the court should grant such latitude as is reasonably necessary to accomplish the purposes of the voir dire. “ ‘Clearly, therefore, if there is any likelihood that some prejudice is in the juror’s mind which will even subconsciously affect his decision of the case, the party who may be adversely affected should be permitted questions designed to uncover that prejudice. . . .’ State v. Higgs, 143 Conn. 138, 142, 120 A.2d 152 (1956).” State v. Rogers, 197 Conn. 314, 318, 497 A.2d 387 (1985).

In this case, the issue of whether feelings of sympathy would influence the jury’s determinations was particularly significant. The plaintiffs had suffered severe personal injuries that included bone fractures and disfiguring facial lacerations. Moreover, it was indicated to the jury that the three plaintiffs who are the adult children of the named plaintiff are mentally retarded and, consequently, are especially dependent upon her. The evidence further showed that, because he had recently suffered a stroke, the husband of the named plaintiff was also greatly dependent upon her, and that as a result of the accident her ability to assist him had substantially diminished. When a considerable potential exists for feelings of sympathy to have a bearing upon the outcome of a case, a query seeking to uncover the extent of a juror’s susceptibility to such feelings should be permitted. It was of vital importance to the defendant that any such susceptibility be brought to light. “He was entitled to explore this area of possible disqualification prior to the impanelling of the jury. Only then could he intelligently challenge for cause or exercise his right of peremptory challenge.” State v. Hill, 196 Conn. 667, 673, 495 A.2d 699 (1985).

The first question of the defendant precluded by the trial court upon the plaintiffs’ objection was whether the juror, knowing only that the plaintiff had suffered an injury, would think that the jury ought to award damages. The court stated that it was sustaining the plaintiffs’ objection because the question sought, in effect, to elicit the juror’s knowledge of the law. It is true that a juror’s knowledge or ignorance with respect to questions of law is not a proper subject of inquiry-on voir dire. State v. Anthony, 172 Conn. 172, 176, 374 A.2d 156 (1976); State v. Clark, 164 Conn. 224, 226, 319 A.2d 398 (1973); Duffy v. Carroll, 137 Conn. 51, 56-57, 75 A.2d 33 (1950). “ ‘[A]ll too frequently such inquiries represent a calculated effort on the part of counsel to ascertain beforé the trial starts what the reaction of the venireman will be to certain issues of fact or law or, at least, to implant in his mind a prejudice or prejudgment on those issues. Such an effort transcends the proper limits of the voir dire and represents an abuse of the statutory right of examination.’ State v. Mendill, 141 Conn. 360, 362, 106 A.2d 178 [1954].” State v. Clark, supra, 226.

The question posed in the present case, however, did not call for a statement by the prospective juror of what he thought the law was. The case of Duffy v. Carroll, supra, is instructive. In Duffy it was alleged that the defendant’s car had struck the six year old plaintiff as a result of the defendant’s negligent driving. The trial court had overruled the defendant’s objections to the following question posed during the voir dire by the plaintiffs counsel: “ ‘Do you feel that a six year old boy is expected to use as much care and caution in crossing a street as an adult person twenty-one years of age?’ ” Id., 55. This court upheld the trial court’s rulings, stating that rather than eliciting the veniremen’s knowledge of the law, the questions “were designed to expose the jurors’ ideas of what they in their own minds would expect by way of care from a young boy as contrasted with an adult. The questions were calculated to disclose what the natural mental reactions of the jurors were and their abilities to discriminate. From the answers, counsel could gain impressions upon which he could decide whether he should exercise a peremptory challenge.” Id., 57. We conclude by analogy that the defendant’s questions in the present case sought merely to uncover the juror’s initial sympathetic impulse and natural mental reaction to another’s injury. Such potentials for bias are proper subjects of inquiry in the voir dire examination.

The second question that the trial court disallowed was whether the juror would feel sympathy for a person encountered on the street who exhibited signs of injury. The court reasoned that the question was irrelevant on the issue of prejudice, saying “the question really is: Would the person set aside the sympathy they feel and follow the law?’ ” Although a prospective juror of normal heart and reasonable mind would scarcely be likely to answer the defendant’s question in the negative, the defendant certainly had a right to this inquiry in order to gauge juror reactions, and thereby to forage for possible prejudices and unusual levels of sympathy. The alternative question framed by the trial court, though perhaps more to the point, was not the defendant’s exclusive conduit for discovering the propensities of the prospective jurors.

Where broad discretion is vested in the trial court, only an abuse of such discretion resulting in harmful prejudice will constitute reversible error that is ground for a new trial. State v. Rogers, supra, 318; State v. Anthony, supra, 176-77. In the circumstances of the present case, because the defendant’s questions on voir dire were not answered, it is impossible for the defendant to show that he could have discovered information that would have justified a challenge for cause or induced him to exercise a peremptory challenge. Thus, we cannot conclude that the trial court’s restrictions placed upon the defendant’s voir dire examination were not harmfully prejudicial. Cf. State v. Anthony, supra, 177. Neither can we agree with the plaintiffs that the bifurcation of the trial on the issues of liability and damages must have sufficiently reduced the role sympathy may have played in the outcome of the case so as to render such restrictions harmless. We note that the same jury was impaneled for both issues.

II

While the conclusion reached above requires us to order a new trial, we discuss the various issues raised by the defendant in connection with his remaining claim to the extent that these may arise at a new trial. See Sandersons. Steve Snyder Enterprises, Inc., 196 Conn. 134, 143, 491 A.2d 389 (1985); State v. Reiser, 196 Conn. 122, 131, 491 A.2d 382 (1985).

A

The plaintiffs brought their suit under the authority of General Statutes § 13a-144, which allows a person injured “through the neglect or default of the state or any of its employees by means of any defective highway . . . which it is the duty of the commissioner of transportation to keep in repair” to bring a civil action against the defendant commissioner. The defendant’s general claim is that the trial court erred in instructing the jury that negligence on the part of the state police could provide a basis for finding the defendant liable under § 13a-144. We disagree.

“The primary rule of statutory construction is that ‘[i]f the language of the statute is clear, it is assumed that the words themselves express the intent of the legislature . . . and thus there is no need to construe the statute . . . .’ Anderson v. Ludgin, 175 Conn. 545, 552, 400 A.2d 712 (1978).” State v. Smith, 194 Conn. 213, 221, 479 A.2d 814 (1984). “ ‘Where the language used by the legislature is plain and unambiguous, there is no room for construction by the courts and the statute will be applied as its words direct.’ Muha v. United Oil Co., 180 Conn. 720, 730, 433 A.2d 1009 (1980).” Warner v. Leslie-Elliott Constructors, Inc., 194 Conn. 129, 135, 479 A.2d 231 (1984). “As Justice Holmes put it in Roschen v. Ward, 279 U.S. 337, 339, 49 S. Ct. 336, 73 L. Ed. 722 (1929): ‘[TJhere is no canon against using common sense in construing laws as saying what they obviously mean.’ ” State v. Roque, 190 Conn. 143, 153, 460 A.2d 26 (1983).

The defendant argues that because a cause of action under § 13a-144 is not really one to recover damages for an injury arising from negligence but for breach of a statutory duty; McManus v. Jarvis, 128 Conn. 707, 710, 22 A.2d 857 (1939); Shirlock v. MacDonald, 121 Conn. 611, 613, 186 A. 562 (1936); and because the statutory duty of maintaining and repairing the state’s highways is upon the defendant and his agents alone; see generally General Statutes §§ 13b-24 through 13b-26; Cairns v. Shugrue, 186 Conn. 300, 441 A.2d 185 (1982); Horton v. Macdonald, 105 Conn. 356, 135 A. 442 (1926); the negligence of the state police cannot properly underlie a cause of action against the defendant under § 13a-144. We recognize that “[i]t is well established law that the state is immune from suit unless it consents to be sued by appropriate legislation waiving sovereign immunity in certain prescribed cases.” Duguay v. Hopkins, 191 Conn. 222, 227, 464 A.2d 45 (1983). The words the legislature employed in § 13a-144 unambiguously support the conclusion that the statute waives sovereign immunity for defective highway claims based upon the “neglect or default” not merely of the commissioner of transportation, but “of the state or any of its employees,” at least when performing duties related to highway maintenance. As the plaintiffs assert, the phrase “which it is the duty of the highway commissioner to keep in repair” identifies those highways to which the state’s liability may attach.

We consequently reject the defendant’s contention that in the phrase in § 13a-144, “through the neglect or default of the state or any of its employees,” the word “any” ought to be interpreted in a restrictive sense to refer only to DOT employees. It is true that “[t]he word ‘any,’ as used in statutes, has a diversity of meanings. It may be all inclusive when used to indicate ‘all’ or ‘every,’ or it may be restrictive when employed to indicate ‘some’ or ‘one.’ Its meaning in a given statute depends upon the context and subject matter of the law.” Duguay v. Hopkins, supra, 229; see also West Hartford Taxpayers Assn., Inc. v. Streeter, 190 Conn. 736, 745, 462 A.2d 379 (1983). There are no words in § 13a-144 limiting or restricting the scope of the phrase “the state or any of its employees” to DOT employees only. If the legislature intended to impose such a restriction, it has failed to express that intention. Duguay v. Hopkins, supra.

Although we reiterate that where we perceive no ambiguity in the language used in a statute an examination of its legislative history is superfluous; see Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 231, 477 A.2d 988 (1984); we note that there is no legislative history of significance in explaining the relevant language of § 13a-144. This language appeared in the original enactment of 1915, when the state first authorized a civil action against a state official for a defective highway. Cairns v. Shugrue, supra, 305. There are no records of legislative hearings or debates to shed light on the original purpose of the phrase “through the neglect or default of the state or any of its employees.” Express authorization, however, for the commissioner to delegate his duties for the repair of highways appeared in Public Acts 1925, c. 263, § 53, which provided: “In the repair, maintenance, construction or reconstruction of any state aid or trunk line highway or bridge, the highway commissioner may employ such assistance as he may require.” Moreover, a provision of § 13a-144 that affords the state subrogation rights against “any contractor or other person” whose neglect or default has caused an injury actionable under the statute, does not constrict the range of such indemnitors to the commissioner of transportation or DOT employees. A reasonable interpretation of § 13a-144; see Hayes v. Smith, 194 Conn. 52, 58, 480 A.2d 425 (1984); Dukes v. Durante, 192 Conn. 207, 214, 471 A.2d 1368 (1984); implies that the commissioner is not relieved of potential liability when he calls upon the assistance of a contractor or other person from outside his department to perform highway maintenance operations.

The defendant’s statutory duty to keep highways in repair encompasses a subduty of investigation and detection of highway problems. Although the state police are not statutorily charged with duties that concern the repair or maintenance of state highways; cf. General Statutes § 29-7; the evidence in the present case indicates that by custom the commissioner of transportation has availed himself of the assistance of the state police and that the state police have assumed such duties. There was testimony that it is a state trooper’s “duty” and “usual procedure” to report defects found in the highway. There was further testimony that the DOT “relies on” the state police to call about highway problems. An established procedure exists by which the DOT makes available to the state police a list of the home phone numbers of its maintenance supervisors for use after hours and on weekends. That procedure was indeed of moment in the present case, the plaintiffs’ accident having occurred on a Saturday. The jury was entitled to find that neglect or default of the state police in safeguarding the hazardous ice condition on Route 2A near the Brookside Inn provided a basis for the defendant’s liability under § 13a-144. The trial court’s jury instructions to that effect, therefore, were not erroneous.

B

The defendant also claims that because the issues framed by the pleadings did not involve the state police, the trial court erroneously invited the jury to venture beyond the parameters of the complaint. “ ‘It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint. Nash Engineering Co. v. Norwalk, 137 Conn. 235, 239, 75 A.2d 496 [1950].’ ” Matthews v. F.M.C. Corporation, 190 Conn. 700, 705, 462 A.2d 376 (1983). “ ‘The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried, not to conceal basic issues until the trial is under way.’ DuBose v. Carabetta, [161 Conn. 254, 261, 287 A.2d 357 (1971)].” Pawlinski v. Allstate Ins. Co., 165 Conn. 1, 6, 327 A.2d 583 (1973). Facts that are necessarily implied in a complaint, however, need not be expressly alleged. Trichilo v. Trichib, 190 Conn. 774, 779, 462 A.2d 1048 (1983).

The plaintiffs’ amended complaint disjunctively alleged six ways in which “the breach of statutory duty of the defendant” had caused the plaintiffs’ injuries. Paragraph 8 (c) of the complaint alleged the lack of “warning signs, flashers, barricades or other warning in the area to warn approaching motorists of the hazardous and dangerous conditions then and there existing.” As we have stated above, the defendant had customarily used the assistance of the state police in performing certain of his statutory duties. Because the state police had assumed the duty of providing adequate initial warning to motorists of hazardous highway conditions, as evidenced in the present case by Trooper Luty’s placement of flares near the ice patch, it is clear that paragraph 8 (c) necessarily implied a breach of the commissioner’s duty to warn of a dangerous highway condition, regardless of which state employees had been engaged to perform that duty. Thus the defendant was adequately apprised of the nature of the proof that might be introduced during the trial. We conclude, therefore, that such evidence did not change the theory of the plaintiffs’ cause of action, and that the trial court’s charge with respect to the actions of the state police did not prejudice the defendant.

C

A further claim of error by the defendant relates to the trial court’s instructions that, upon finding that the duties of the state police included reporting highway defects, the jury “may consider that notice to them is notice to the defendant . . . .” The defendant argues that only the defendant’s receipt of actual or constructive notice of a defect can provide the temporal reference point for determining whether a reasonable opportunity to remedy the defect existed. We find the trial court’s instructions to be a correct statement of the law. In analogous cases involving defective town roads, this court recognized that “[njotice to a policeman ordinarily is not notice to the municipality except where it is shown that he is charged with the duty of remedying or reporting defects. Cummings v. Hartford, 70 Conn. 115, [121-22], 38 Atl. 916 [1897].” Wade v. Bridgeport, 109 Conn. 100, 109, 145 A. 644 (1929). The trial court’s instructions thus echoed this principle.

We find unconvincing the defendant’s assertions that the jury charge on notice was incorrect because there was no evidence of a master-servant relationship between the defendant and the state police. Having concluded that under § 13a-144 the defendant may be held liable for the neglect or default of the state police, it is only sensible to conclude further that notice to the latter is effective against the former. The determination of whether the state police were negligent certainly requires consideration of any notice they may have received that afforded them a reasonable opportunity to act. A finding of such notice as a basis for a further finding of breach of duty on the part of the state police would satisfy the statute’s “neglect or default” requirement without an additional showing that the defendant also had notice.

D

Finally, the defendant claims that the trial court’s jury instructions regarding proximate cause were erroneous. Although the defendant took no exception on this point, we consider the issue because it may arise on retrial. We first dispose of the defendant’s contention that the jury was never instructed on the need to find a causal connection between the misconduct of the state police and the plaintiffs’ injuries. The trial court in fact instructed that the plaintiffs “must prove . . . that the sole proximate cause of the injuries was the neglect or default of the State or any of its employees.”

The defendant’s additional contention is that, because a finding that the highway defect was the sole proximate cause of the injury is a requisite for recovery under § 13a-144, the trial court erred in charging that a third party’s conduct, that of the state police, could provide a basis for liability. It is well established that parties suing the state for injuries sustained because of a defective highway must prove that the defect was the sole proximate cause of their injuries. See Kolich v. Shugrue, 198 Conn. 322, 326, 502 A.2d 918 (1986); Foster v. Waterford, 186 Conn. 692, 695, 443 A.2d 490 (1982); Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981); Donnelly v. Ives, 159 Conn. 163, 167, 268 A.2d 406 (1970). “It is the statute only, which entitles the plaintiff to compensation for his injury when that injury is caused through or by means of a defect in the highway. If the negligence of himself or of a third person is also a proximate cause, he cannot say with truth that he was injured by the defect; he can only say with truth that he was injured by his own or another’s carelessness and the defect, and the two combined give no cause of action under the statute.” Bartram v. Sharon, 71 Conn. 686, 690, 43 A. 143 (1899); Roth v. MacDonald, 124 Conn. 461, 463, 200 A. 725 (1938).

The trial court instructed the jury that the plaintiffs had the burden of proving freedom from contributory negligence. The defendant, of course, does not claim that his negligence or that of a DOT employee in performing the statutory duty to repair and maintain the highway could have been a concurrent cause of the plaintiffs’ injuries so as to preclude the highway defect from being considered the sole legal cause. See, e.g., Cairns v. Shugrue, supra, 310. Because § 13a-144 entitles the plaintiffs to compensation for injuries resulting from the neglect or default of the state or any of its employees, the state police are similarly not third parties in relation to the statute. Thus, the fault of the state police in performing a duty they have assumed with respect to defective highways is not a concurrent cause that deprives the plaintiffs of their cause of action.

There is error, the judgment is set aside and a new trial is ordered.

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

Dannehy, J.,

dissenting in part. I respectfully dissent. I disagree with the majority only as to part II: whether the trial court erred in instructing the jury that negligence on the part of the state police could provide a basis for finding the defendant liable under General Statutes § 13a-144.

The state of Connecticut is not liable for simple negligence in the repair and construction of its roads. The state is immune to suit on such a ground. The plaintiffs’ sole right to recover damages for any injuries which they may prove exists by virtue of § 13a-144, the “defective highway statute.” Apart from the statute the plaintiffs had no right to recover damages from the defendant. The plaintiffs, of course, made no claim to the contrary but based their case on the defective highway statute.

It was apparently undisputed that the plaintiffs had complied with the requirements of the statute as to notice. And the defendant does not argue that the evidence would not warrant a finding that the plaintiffs were injured when the automobile in which they were riding passed over an ice patch, swerved out of control, and collided with a bridge abutment. Nor does he contend that the defect, the ice patch, could not have been found to be a remediable defect of which the defendant by the exercise of proper care and diligence might have had reasonable notice. The ground argued by the defendant is that the trial court erred in instructing the jury that negligence on the part of the state police could provide a basis for recovery under § 13a-144.

In actions against the state for defective highways there can be no recovery unless the defect was the sole cause of the injury. In other words, where the wrongdoing of a third person combines with the defect in the highway to cause the injury, the state is not liable. Consequently, if any negligence of the state police contributed to the accident, the plaintiffs could not recover because by reason of that negligence it could not be found that the defect in the highway was the sole cause of the injury.

The plaintiffs, to be entitled to a verdict, had to prove first, that the highway at the place and time in question was defective from the icy condition as alleged in the complaint; second, that the defendant’s actual or constructive notice of this condition came a sufficient length of time before the claimed injuries occurred so that the defendant, if in the exercise of reasonable care, could have remedied the particular defective condition prior to the collision; third, that the plaintiffs sustained injuries and that the particular defective condition as alleged was the sole proximate cause of the plaintiffs’ collision and injuries. Since there is neither law nor fact to support the majority opinion, I would find that the trial court erred in instructing the jury that the negligence on the part of the police could provide a basis for recovery under § 13a-144.

Callahan, J.,

dissenting in part. I respectfully dissent from part I of the majority opinion. “The trial court has wide discretion in conducting the examination of jurors. [Citations omitted.] Unless this discretion has been clearly abused or harmful prejudice appears to have been caused thereby, the court’s supervision of the voir dire will be upheld.” Robinson v. Faulkner, 163 Conn. 365, 374, 306 A.2d 857 (1972); State v. Bowen, 167 Conn. 526, 530, 356 A.2d 162 (1975); State v. Van Valkenburg, 160 Conn. 171, 173, 276 A.2d 888 (1970). I do not believe the trial court clearly abused its wide discretion when it sustained the plaintiffs’ objections to the questions of defendant’s counsel during voir dire, the exclusion of which the majority finds to be error. I agree with part II of the majority opinion and would affirm the judgment.

       The trial court’s full explanation was as follows:
      “I just want to put on the record with respect to Mr. Cooney’s first point as to whether the juror would give money to somebody just because they were injured, basically that is one of the—infringing on one of the areas that is not permitted, that is, the juror’s knowledge of the law. That’s asking him, in effect, Do you know what the law is with respect to when you may give damages and when you may not award damages to the Plaintiff?
      “With respect to the second question as to whether the person is a sympathetic person or not, that really is irrelevant on the issue of prejudice; and the question really is, Would the person set aside the sympathy they feel and follow the law?
      “Now, it obviously would be very helpful to counsel to know which are the most sympathetic jurors and ask them to rate themselves on a scale of one to ten. Then the Defendant would put those—all those who rate themselves below five for the Defendant. The Plaintiff would pick all those who rate themselves higher than ten for sympathy, but that’s not what the purpose of the voir dire is; and that’s why the Court will sustain the objection to those two questions.”

       The defendant’s counsel explained to the trial court his reasons for asking the questions at issue:
      “[T]he jurors will not say in so many words that they will not follow the law of the Court, but, on the other hand, Your Honor, if certain other questions are asked, for example, the very first one that I asked whether the juror would be inclined or whether the juror would award money to an injured party simply knowing that party was injured and on that basis alone give him money, Your Honor, I think that goes to the type of prejudice which a juror might have which would perhaps overcome any good intention that the juror might have in agreeing to follow the law; and the same goes, I think, Your Honor, for the question regarding sympathy.
      “Again I think that asked the questions—asked the particular question in so many words whether the juror would put sympathy aside in deliberating on the issues, any juror—potential juror would say, of course, they would put sympathy aside, but unless counsel is allowed to inquire into the area of sympathy and whether the potential juror feels sympathy and the degree to which the potential juror feels sympathy for injured or disabled people, that the true flavor of the juror’s perceptions of injury and how those perceptions will affect the deliberating process are not going to come forth.”

       “[General Statutes] Sec. 13a-144. damages for injuries sustained on state highways or sidewalks. Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the superior court. No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. Such action shall be tried to the court or jury, and such portion of the amount of the judgment rendered therein as exceeds any amount paid to the plaintiff prior thereto under insurance liability policies held by the state shall, upon the filing with the comptroller of a certified copy of such judgment, be paid by the state out of the appropriation for the commissioner for repair of highways; but no costs or judgment fee in any such action shall be taxed against the defendant. This section shall not be construed so as to relieve any contractor or other person, through whose neglect or default any such injury may have occurred, from liability to the state; and, upon payment by the comptroller of any judgment rendered under the provisions of this section, the state shall be subrogated to the rights of such injured person to recover from any such contractor or other person an amount equal to the judgment it has so paid. The commissioner, with the approval of the attorney general and the consent of the court before which any such action is pending, may make an offer of judgment in settlement of any such claim. The commissioner and the state shall not be liable in damages for injury to person or property when such injury occurred on any highway or part thereof abandoned by the state or on any portion of a highway not a state highway but connecting with or crossing a state highway, which portion is not within the traveled portion of such state highway. The requirement of notice specified in this section shall be deemed complied with if an action is commenced, by a writ and complaint setting forth the injury and a general description of the same and of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of.”
      The following are relevant portions of the trial court’s jury charge:
      “The question is, did the State have reasonable time to safeguard the scene or to remedy the defect? Now, remember, the statute says, ‘Any person injured . . . through the neglect or default of the State or any of its employees by means of any defective highway . . . which it is the duty of the Commissioner of Transportation to keep in repair . . . .’
      “[Wjith regard to neglect or default in duties, did Trooper Luty when he got to the scene, saw the ice, concluded it was dangerous enough to call for a sand truck, did he act reasonably in putting out flares that he expected to last one half hour and then leave the scene or should he have done more to safeguard the scene until the sand truck arrived?
      “Now, you have to decide whether it was reasonable for him to do what he did or whether or not he should have done more than that and either stayed or done something else at the scene until the sand trucks actually got there, although I do have to remind you again he did not know an accident was going to occur at either 4:12 or 4:17 [p.m.]. So, knowing what he knew at the time is the way you have to consider that question.
      “If you find that he should have stayed or he should have done something to protect the scene until the sand trucks arrived, then you could find that the State was in neglect or default of its duties; and if you find everything else, that is, due care on the part of the Plaintiff and the other factors I mentioned, you should find for the Plaintiff. If you find he did what was appropriate and reasonable under the circumstances, then in that regard to that question, you should find for the Defendant.”
      The trial court later elaborated:
      “So, what [§ 13a-144] is saying, if any State employee is injured or, rather, if any person is injured through the neglect or default of any State employee whether State Police or anybody else by means of a defective highway, that is, if their negligence or their default in performing their duties has to do with a defective highway, then the person may sue the Department of Transportation. So, that’s the way the statute reads, and in this case there was evidence that the State Police have a duty with respect to highway defects if they observe them to report them to the Department of Transportation. Then they also have a duty to protect the scene as Trooper Luty indicated he did by putting up flares and that sort of thing.”
      The trial court also instructed the jury that its finding of negligence on the part of DOT employees could form the basis of a verdict in favor of the plaintiffs. Because we find the instructions quoted above not to have been erroneous, and because we are here concerned with anticipating claims of error that may arise at the new trial, we need not discuss the plaintiffs’ assertion that the “general verdict rule”; see Goodman v. Metallic Ladder Mfg. Corporation, 181 Conn. 62, 64-65, 434 A.2d 324 (1980); Harry A. Finman & Son, Inc. v. Connecticut Truck & Trailer Service Co., 169 Conn. 407, 410-11, 363 A.2d 86 (1975); precludes our review of the defendant’s claim.

       Public Acts 1915, c. 307, § 1, provides: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of a defective road or bridge which it is the duty of the state highway commissioner to keep in repair . . . may bring a civil action to recover damages sustained thereby . . . .”

       See footnote 3, supra.

       Paragraph eight of the first count of the plaintiffs’ amended complaint reads:
      “The injuries and losses of the plaintiff was caused by the breach of statutory duty of the defendant in one or more of the following ways:
      “(a) In that the highway had an ice patch in the eastbound lane and hence was hazardous for vehicular traffic;
      “(b) In that no attempt was made to remove or repair the same so as to render the highway safe for vehicular traffic;
      “(c) In that there were no warning signs, flashers, barricades or other warning in the area to warn approaching motorists of the hazardous and dangerous conditions then and there existing;
      “(d) In that the highway was not reasonably safe for purposes and uses intended;
      “(e) In that the defendant knew or in the exercise of reasonable care and inspection should have known of the conditions and remedied and corrected them;
      “(f) In that the conditions had existed for a sufficient period of time so that the defendant knew or should have known of them and should have taken measures to remedy and correct them, but this he failed to do.”

       Because we reject the defendant’s contention regarding notice, we need not consider his argument that the entry of a judgment in his favor notwithstanding the verdict is mandated because “the plaintiffs introduced no evidence at all as to how much time it should reasonably have taken the defendant to remedy the defect from the time of notification to him.”


source: Caselaw Access Project

author: Arthur H. Healey, J.

license: Public Domain

text:
    Security Insurance Company of Hartford v. John DeLaurentis
    (12771)
    Healey, Shea, Dannehy, Callahan and Pickett, Js.
    Argued November 7, 1986
    decision released January 27, 1987

      Peter J. Ottomano, for the appellant (defendant).

      Susan M. Cormier, with whom were Wesley W. Horton and, on the brief, Michael V. Hebert, for the appellee (plaintiff).
   Arthur H. Healey, J.

The principal question on this appeal is whether an insurer must arbitrate an under-insured motorist claim pursuant to an arbitration provision of an uninsured motorist clause included in an insurance policy issued by the insurer.

The underlying facts are undisputed. The plaintiff, Security Insurance Company of Hartford, issued an automobile insurance policy to the defendant, John DeLaurentis. The effective dates of the policy were from March 1,1978, to March 1,1979. The policy contained uninsured motorist coverage which provided, inter alia, for the arbitration of all coverage issues arising thereunder. The policy provided coverage for four separate vehicles owned by the defendant.

On September 18,1978, the defendant was involved in an accident with a vehicle owned and operated by-Eva Pikoulidis. Pikoulidis was insured by Metropolitan Property and Liability Insurance Company under a single limit policy of $50,000, a sum in excess of the statutory limits then in effect. On March 24,1980, the defendant filed suit against Pikoulidis. This suit was settled on January 19, 1984; the defendant was paid the $50,000 policy limit. The defendant alleges that the reasonable value of his claim exceeds $50,000.

Upon settlement, the defendant filed for arbitration of his claim under his own policy, seeking to stack his uninsured motorist coverage, $20,000 on each of his four vehicles, to increase the coverage limit to $80,000. Because the amount payable under the policy would be reduced by “all sums paid on account of the insured’s bodily injury by or on behalf of the owner or operator of the uninsured automobile,” the potential recovery in the arbitration proceeding would be $30,000, the $80,000 policy limit reduced by the $50,000 paid on behalf of Pikoulidis.

The plaintiff responded by filing a declaratory judgment action which sought (1) a temporary and permanent injunction restraining the defendant from proceeding with arbitration, and (2) a determination whether (A) “[t]he 1979 amendment to Section 38-175c of the Connecticut General Statutes should apply retroactively; [(B) i]f not, is an underinsured motor vehicle on September 18,1978, an uninsured motor vehicle under Section 38-175c; [and (C) does the] plaintiff have any obligation to proceed to arbitration.”

In its memorandum of decision dated April 18,1985, the trial court, Spada, J., granted the plaintiffs request for summary judgment, and permanently enjoined the defendant from proceeding to arbitration. The court also answered “no” to each question presented for determination by declaratory judgment. On May 20, 1985, the defendant filed a request for further articulation. On July 28,1985, the court filed a memorandum of decision in response to the defendant’s request.

The defendant has appealed from the trial court rulings. The defendant claims that the court erred in ruling: (1) that the plaintiff has no obligation to proceed to arbitration; (2) that the insurance policy should not be construed to include underinsured motorists within its uninsured motorist protection; (3) that the defendant is permanently restrained from proceeding to arbitration without a finding of irreparable harm or lack of an adequate remedy at law; and (4) that the jurisdictional requirements for a declaratory judgment action were met in this case.

The defendant’s first claim of error is that the trial court erred in ruling that the plaintiff has no obligation to proceed to arbitration. The defendant argues that the issue of whether the plaintiff must arbitrate the defendant’s underinsurance claim is a question of coverage which must be determined by arbitration. In support of this argument, the defendant points to the language of the insurance policy issued by the plaintiff, as well as the mandatory language of General Statutes § 38-175c. The plaintiff, on the other hand, argues that the defendant’s characterization of the issue as one of coverage is erroneous. The plaintiff contends that the issue of whether the plaintiff must arbitrate the defendant’s claim is one of arbitrability which is a question for the court. Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 274, 231 A.2d 531 (1967), citing Connecticut Union of Telephone Workers, Inc. v. Southern New England Telephone Co., 148 Conn. 192, 198, 169 A.2d 646 (1961). The plaintiff also argues that the policy it issued to the defendant does not extend insurance benefits to accidents with underinsured motorists and General Statutes § 38-175c does not mandate arbitration because the statute does not apply retroactively. We agree with the defendant that the issue is one of coverage and, as such, the plaintiff is obligated to proceed with arbitration.

The duty to arbitrate may be created by contract or by statute. Wilson v. Security Ins. Group, 199 Conn. 618, 622, 509 A.2d 467 (1986); Frager v. Pennsylvania General Ins. Co., supra; Ginsberg v. Coating Products, Inc., 152 Conn. 592, 596, 210 A.2d 667 (1965), and cases cited therein. In the absence of a contrary statute, “[t]he obligations and rights of the parties are described and limited by their written agreement. The answer to the question whether or not the court shall direct a party to proceed with arbitration is embodied in the insurance contract.” Visselli v. American Fidelity Co., 155 Conn. 622, 624, 237 A.2d 561 (1967); John A. Errichetti Associates v. Boutin, 183 Conn. 481, 488, 439 A.2d 416 (1981); W. J. Megin, Inc. v. State, 181 Conn. 47, 51, 434 A.2d 306 (1980). Parties who have contracted to arbitrate certain matters have no obligation to arbitrate any matters other than those which they have agreed to arbitrate. Wilson v. Security Ins. Group, supra; Frager v. Pennsylvania General Ins. Co., supra. Except when mandated by statute, a court may not compel parties “to arbitrate matters other than those which they have agreed to arbitrate under the provisions of their insurance policy.” Visselli v. American Fidelity Co., supra; John A. Errichetti Associates v. Boutin, supra; Frager v. Pennsylvania General Ins. Co., supra; see Batter Building Materials Co. v. Kirschner, 142 Conn. 1, 4, 110 A.2d 464 (1954). “Whether a particular dispute is arbitrable is a question for the court, unless, by appropriate language, the parties have agreed to arbitrate that question, also. Connecticut Union of Telephone Workers, Inc. v. Southern New England Telephone Co., [supra]; College Plaza, Inc. v. Harlaco, Inc., 152 Conn. 707, 206 A.2d 832 [1965].” Frager v. Pennsylvania General Ins. Co., supra.

The arbitration clause contained in the policy issued by the plaintiff, which constitutes the agreement to arbitrate and which, necessarily, determines the issues to be arbitrated, provides the following: “Arbitration: If any person making claim [under Part IV, Protection Against Uninsured Motorists,] and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured highway vehicle or an uninsured motor vehicle because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing hereunder, or do not agree as to the coverage of insurance hereunder, then, upon written demand of either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration .... Such person and the company each agree to consider itself bound by any award made by the arbitrators pursuant to this provision.” (Emphasis added.)

This agreement to arbitrate is not a broad, all encompassing provision for arbitration. Cf. John A. Errichetti Associates v. Boutin, supra, 489. The provision applies only to claims filed pursuant to part IV of the insurance policy; unless the claim is filed pursuant to this clause, the arbitration provision is inapplicable. See Frager v. Pennsylvania General Ins. Co., supra, 275. Under the agreement, the plaintiff and the defendant agreed to arbitrate the following issues: (1) the insured’s right to recover damages from the owner or operator of an uninsured automobile; (2) the amount of damages; and (3) any dispute as to the coverage of insurance to the claim filed by the insured.

While the defendant and the plaintiff, for the purpose of this appeal, do not disagree that the defendant is “legally entitled to recover damages” from Pikoulidis, or as to “the amount of payment which may be owing,” there is disagreement as to whether the policy extends insurance benefits to this underinsurance claim. Whether an underinsured motor vehicle is an “uninsured automobile” within the terms of the policy is a question of the coverage under part IV of the policy. See Frager v. Pennsylvania General Ins. Co., supra, 276 (whether a “hit-and-run” automobile is an “uninsured automobile” under the terms of the policy is a question of coverage). The defendant’s ability to obtain insurance benefits hinges upon a resolution of the dispute over whether the policy extends coverage to the claim filed. The arbitration clause contained in the policy mandates that the parties arbitrate this coverage dispute.

Further support for our conclusion that the defendant’s claim is one of coverage which must be decided by arbitration can be found in the language of General Statutes § 38-175c. Section 38-175c (a) (1) provides that all motor vehicle insurance policies issued on or after October 1,1971, which include an uninsured motorist provision “which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding.” (Emphasis added.) See Wilson v. Security Ins. Group, supra, 622-23. The policy issued by the plaintiff contains such a provision. “In Oliva v. Aetna Casualty & Surety Co., 181 Conn. 37, 41, 434 A.2d 304 (1980), we recognized that this provision of § 38-175c (a) (1) had legislatively overruled our holding in Frager that an insurer could contractually limit the uninsured motorist issues to be decided by the arbitrators and thus exclude questions of coverage.” Wilson v. Security Ins. Group, supra. In Oliva v. Aetna Casualty & Surety Co., supra, 42, this court interpreted the statute broadly and held that the expressed intent and effect of the statute “is to remove from the court and to transfer to the arbitration panel the function of determining, in the first instance, all issues as to coverage under automobile liability insurance policies containing uninsured motorist clauses providing for arbitration.” See also Wilson v. Security Ins. Group, supra, 622.

The plaintiff argues, and the trial court held, that the policy issued to the defendant does not afford “coverage” for accidents with underinsured motorists and that since the defendant is “unable to meet the threshold issue of whether the tortfeasor vehicle is an uninsured vehicle,” there is no duty on the part of the plaintiff to proceed to arbitration. In fact, the trial court framed the issue as “whether the Defendant’s motor vehicle qualified for underinsurance benefits under § 38-175c.” This analysis fails to recognize that the determination of arbitrability is dependent upon the scope of the agreement to arbitrate, not upon the relative strength or weakness of a party’s position on the disputed claim. See John A. Errichetti Associates v. Boutin, supra, 488; W. J. Megin, Inc. v. State, supra, 51; Visselli v. American Fidelity Co., supra, 624. In Oliva v. Aetna Casualty & Surety Co., supra, 39-40, we stated that “[t]he function of the court ... is to determine, in the first instance, whether the issue is arbitrable. If the court so decides, an order compelling arbitration is issued. If, on the other hand, the court decides that the issue is not arbitrable, it can proceed to decide the issue on the merits. In such a case, however, the plaintiff can appeal on the ground that the court erred in concluding that the issue was not arbitrable.” See also Wilson v. Security Ins. Group, supra.

In this case, the trial court, instead of deciding the threshold question of whether the issue was arbitrable, decided the merits of the defendant’s claim. The court examined the language of the policy to determine whether the policy extends insurance benefits to accidents with underinsured motorists. The court stated that because “the policy does not extend coverage to underinsurance accidents,” the plaintiff has no obligation to proceed to arbitration. This analysis is erroneous because it was the trial court’s obligation to decide first whether the issue was arbitrable, that is, whether the claim involved a coverage dispute. Only if the court answered no to this question should the court have reached the merits of the defendant’s claim. See Oliva v. Aetna Casualty & Surety Co., supra. By deciding the merits of the coverage dispute first, the court interpreted the policy, thus deciding the “coverage dispute” that should have been decided by arbitration. The trial court’s analysis was contrary to Oliva. Whether the defendant is able to establish that the policy should be construed to extend insurance benefits to accidents with underinsured motorists pursuant to the uninsured motorist clause is a question of coverage. The parties have contractually agreed to arbitrate coverage questions. The defendant’s election to do so must be honored.

The subject policy provides for arbitration if a claimant and the company do not agree as to coverage of insurance under part IV of the policy. The defendant filed a claim pursuant to part IV and the plaintiff disputes whether part IV of the policy extends insurance benefits to the defendant’s underinsurance claim. Whether underinsurance protection is included within uninsured protection under part IV, when read as a whole, is a coverage question which must be submitted to arbitration in accordance with the written agreement of the parties. The trial court erred in granting the plaintiff’s request for an injunction, permanently restraining the defendant from proceeding to arbitration.

Because of our disposition of the defendant’s first claim of error, we need not reach the merits of the defendant’s three remaining claims of error.

There is error, the judgment is set aside and the case is remanded with direction to dismiss the complaint for lack of jurisdiction.

In this opinion the other justices concurred.

       The policy contains the following language:
      “PART IV—PROTECTION AGAINST UNINSURED MOTORISTS . . . “Arbitration: If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing under this Part, then, upon written demand of either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and the company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this Part.”
      This language was subsequently amended as follows:
      “CONNECTICUT AMENDMENT
      “It is agreed that ... II. With respect to the insurance afforded by the policy for damages because of bodily injury caused by accident and ari sing out of ownership, maintenance or use of an uninsured highway vehicle or uninsured motor vehicle:
      * * *
      “4. The insured shall not be required to arbitrate disputed claims. If the insured elects to arbitrate disputed claims, the Condition or other provision entitled ‘Arbitration’ is replaced by the following:
      “Arbitration
      “If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured highway vehicle or an uninsured motor vehicle because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing hereunder, or do not agree as to the coverage of insurance hereunder, then, upon written demand of either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and the judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and the company each agree to consider itself bound by any award made by the arbitrators pursuant to this provision.” (Emphasis added.)
      The plaintiff does not dispute that the policy as amended was the policy in effect at the time of the accident.

       In Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 231 A.2d 531 (1967), which was decided before the enactment of General Statutes § 38-175c, the policy provided for arbitration of two issues: (1) the insured’s right to recover damages from the owner or operator of an uninsured automobile; and (2) the amount of such damages. The court held that the issue of “[wjhether an unidentified automobile is an ‘uninsured automobile’ within the terms of the policy . . . pertains to coverage under Part IV of the policy.” Id., 276. Because “coverage disputes” were not arbitrable issues under the contract entered into between the insured and the insurer, the insurer had no obligation to proceed with arbitration. Id., 276-77. “We note, however, that Frager v. Pennslvania General Ins. Co., [supra], and its progeny, including Visselli v. American Fidelity Co., 155 Conn. 622, 237 A.2d 561 (1967), have been legislatively overruled by General Statutes § 38-175c to the extent that they held that an insurer could limit the issues relating to uninsured motorist coverage which the arbitrator could decide. Oliva v. Aetna Casualty & Surety Co., 181 Conn. 37, 41, 434 A.2d 304 (1980).” Fishman v. Middlesex Mutual Assurance Co., 4 Conn. App. 339, 350 n.6, 494 A.2d 606, cert. denied, 197 Conn. 806, 807, 499 A.2d 57 (1985).

       General Statutes (Rev. to 1979) § 38-175c provides: “uninsured motorist coverage. Every such policy shall provide insurance in accordance with such regulations, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles or of insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom, provided each insurer licensed to write automobile liability insurance in this state shall provide such uninsured motorists coverage with limits requested by the named insured upon payment of the appropriate premium, but such insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily injury coverage of such policy issued to such named insured. Every such policy issued on or after October 1, 1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding.” General Statutes § 38-175c has been amended to provide: “uninsured motorist COVERAGE, (a) (1) Every such policy shall provide insurance, herein called uninsured motorist coverage, in accordance with such regulations, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom, provided each insurer licensed to write automobile liability insurance in this state shall provide such uninsured motorists coverage with limits requested by the named insured upon payment of the appropriate premium, but such insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily injury coverage of such policy issued to such named insured. No insurer shall be required to provide uninsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured, or (B) to any insured occupying an uninsured or underinsured motor vehicle owned by such insured. Every such policy issued on or after October 1, 1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. With respect to any claim submitted to arbitration on or after October 1,1983, the arbitration proceeding shall be conducted by a single arbitrator if the amount in demand is forty thousand dollars or less or by a panel of three arbitrators if the amount in demand is more than forty thousand dollars.”
      In 1979, this statute was amended to include, inter alia, underinsured motor vehicles. Public Acts 1979, No. 79-235. The implications of this amendment as it pertains to the issue of whether the policy extends insurance benefits to the underinsurance claim filed by the defendant is an issue of “coverage” which, as will be discussed, must be decided in an arbitration proceeding.


author: Per Curiam.

text:
    State of Connecticut v. George Blasko
    (13003)
    Peters, C. J., Healey, Shea, Santaniello and Callahan, Js.
    Argued January 14
    judgment released January 27, 1987

      John M. Massameno, assistant state’s attorney, with whom, on the brief, were John J. Kelly, chief state’s attorney, and Domenick Galluzzo, assistant state’s attorney, for the appellant (state).

      Barbara Aaron, with whom, on the brief, were Albert J. McGrail and Patrick Tomasiewicz, for the appellee (defendant).
   Per Curiam.

The issue in this appeal is whether the 1985 reform of the procedures governing investigatory grand juries terminated the authority of grand juries that had been duly constituted before the effective date of Public Acts 1985, No. 85-611. Because the continuing validity of a number of pre-1985 grand juries is affected by our resolution of this issue, this is an unusual case demanding expedited resolution. Accordingly, we announce herewith our decision that Public Acts 1985, No. 85-611, as clarified by Public Acts 1986, No. 86-317, did not revoke the authority of or alter the procedures governing investigatory grand juries that had been properly authorized before October 1,1985. A full opinion will be filed in due course.

There is error, the judgment of dismissal is set aside and the case is remanded for further proceedings in accordance with this decision.


author: Peters, C. J.

text:
    Thomas P. Finley v. Aetna Life and Casualty Company
    (12891)
    Peters, C. J., Dannehy, Santaniello, Callahan and Kline, Js.

      Argued December 4, 1986
    decision released January 27, 1987

      Albert Zakarian, with whom were Stefan R. Underhill and, on the brief, Felix J. Springer, for the appellant (defendant).

      Wesley W. Horton, with whom were Robert W. Heagney and Alexandra Davis, for the appellee (plaintiff).

      John A. Speziale, Jay E. Bovilsky and William H. Narwold filed a brief for the Connecticut Business and Industry Association, Inc., as amicus curiae.
   Peters, C. J.

This appeal involves claims of an employee that he was wrongfully discharged despite assurances of lifelong employment so long as his performance remained satisfactory. The plaintiff, Thomas P. Finley, brought an action in three counts against the defendant, Aetna Life & Casualty Company, alleging that the defendant’s termination of his employment was wrongful because of: (1) breach of express contract; (2) promissory estoppel; and (3) breach of an implied covenant of good faith. Following a jury trial, the trial court, Missal, J., granted the defendant’s motion for directed verdicts on the second and third counts of the complaint, and submitted the first count, alleging breach of express contract, to the jury. The jury rendered a general verdict for the defendant. The plaintiff appealed to the Appellate Court, which found error and ordered a new trial on the first and second counts of the complaint. We granted the defendant’s petition for certification and now reverse the judgment of the Appellate Court.

This case arises out of the defendant’s decision to terminate the employment of the plaintiff on April 12, 1976. The plaintiff, who had been employed by the defendant for twenty-four years, was a manager in the defendant’s Medicare department, part B, at the time of his discharge. The jury might reasonably have found that the defendant, through its agents and its personnel manual, made representations to him that his employment would not be terminated so long as his performance was satisfactory. Furthermore, the plaintiff at trial introduced into evidence written performance appraisals made during his employment with the defendant, as well as the oral statements of one of his former supervisors, to show that his job performance had been satisfactory. From the defendant’s evidence, however, the jury might also reasonably have found that for some time before the plaintiffs discharge, he and his immediate supervisor had been involved in a divisive and acrimonious departmental dispute. Both men ultimately were discharged because of their inability to resolve their differences.

The plaintiffs amended complaint alleged, in the first count, the breach of an express contract arising out of the defendant’s assurances that the plaintiff would remain employed so long as his job performance was satisfactory. Despite the defendant’s motion for a directed verdict on this count, the trial court permitted this claim to go to the jury. The jury found for the defendant.

The plaintiff’s second count, sounding in promissory estoppel, alleged that the plaintiff had relied to his detriment on the defendant’s representations of continued employment. His third count alleged that the defendant violated an implied covenant of good faith by wrongfully terminating his employment. As to these two counts, the trial court granted the defendant’s motion for a directed verdict. After the adverse jury verdict on count one, the plaintiff moved to set aside the verdict and for a new trial on these latter counts only. This motion was denied by the trial court.

The plaintiff appealed to the Appellate Court. With respect to the first count, in which he was appealing from the adverse jury verdict, the plaintiff claimed that the trial court had erred in instructing the jury that: (1) the statute of frauds barred it from considering any oral representations made by the defendant in deciding whether the parties had had an employment contract; and (2) it could not find an employment contract solely from statements made in the defendant’s personnel manual. With respect to the second count, in which he was appealing from the directed verdict, the plaintiff claimed that he had detrimentally relied on the defendant’s promises of continued employment while his job performance remained satisfactory. No appeal was taken with respect to the directed verdict on the third count.

The Appellate Court found error in each of the rulings challenged by the plaintiff. It rejected the defendant’s argument that the general verdict rule barred its review of the plaintiff’s allegations of error in the jury instructions; Finley v. Aetna Life & Casualty Co., 5 Conn. App. 394, 396-97, 499 A.2d 64 (1985); and found plain error in the charge as given. Id., 402, 404-13. It also held that the trial court improperly directed a verdict for the defendant on the plaintiff’s promissory estoppel claim. Id., 413-17. The Appellate Court accordingly set aside the verdict for the defendants on the first and second counts of the complaint and ordered a new trial on those counts. Id., 417.

On appeal to this court after certification, the defendant claims that the Appellate Court erred in holding that: (1) the general verdict rule did not apply to the circumstances of this case; (2) the plaintiff’s claims of error relating to the trial court’s jury charge were reviewable under the plain error doctrine, despite the plaintiff’s failure properly to preserve these claims for appeal; (3) the errors in the charge were not harmless; and (4) the trial court erred in directing a verdict for the defendant on the second count of the complaint, alleging promissory estoppel. We agree with the defendant that the general verdict rule requires the sustaining of the jury’s verdict notwithstanding the Appellate Court’s findings of error in the jury charge on the first count and the directed verdict on the second count.

I

As a threshold matter, we first consider the issue of whether the Appellate Court improperly invoked the plain error doctrine to reach the merits of the plaintiffs claims regarding the jury charge on the first count. The plaintiff, although he took exception to the portions of the charge relating to the statute of frauds and the effect of the defendant’s personnel manual, failed to raise these claims of error in his motion to set aside the verdict. Accordingly, the Appellate Court held that it could review these claims only under the plain error doctrine. See Pietrorazio v. Santopietro, 185 Conn. 510, 515-16, 441 A.2d 163 (1981) (in civil action seeking money damages, claims of error must be raised in motion to set aside verdict in order to ensure their full appellate review). The plain error doctrine, as stated in Practice Book § 3063 (now § 4185), provides that the Supreme and Appellate Courts “may in the interests of justice notice plain error not brought to the attention of the trial court.” See also General Statutes § 52-265 (a). The defendant relies on several recent holdings of this court to argue that plain error review should be invoked only in extraordinary situations where the error is obvious. See Kolich v. Shugrue, 198 Conn. 322, 326, 502 A.2d 918 (1986); State v. Rothenberg, 195 Conn. 253, 262-63, 487 A.2d 545 (1985). In this case, the defendant contends, plain error review was inappropriate because the relevant portions of the trial court’s charge were not contrary to “settled” Connecticut law. We disagree.

Practice Book § 3063 sets forth a discretionary standard under which the Supreme and Appellate Courts “may” review claims not properly raised in the trial court “in the interests of justice.” See State v. Tatem, 194 Conn. 594, 595, 483 A.2d 1087 (1984); see generally Mickel v. New England Coal & Coke Co., 132 Conn. 671, 674, 47 A.2d 187 (1946). On certification, therefore, the scope of our review is limited to determining whether the Appellate Court abused its discretion in granting review under the plain error doctrine. The critical question, accordingly, is not whether this court would have granted review in the same circumstances, but whether, if we indulge every reasonable presumption in favor of the correctness of the Appellate Court’s decision, that court properly exercised its discretionary power under Practice Book § 3063. See Reynolds v. Ramos, 188 Conn. 316, 320-21, 449 A.2d 182 (1982); DeLorenzo v. Great Atlantic & Pacific Tea Co., 4 Conn. App. 560, 562, 495 A.2d 1106 (1985); DeSantis v. Piccadilly Land Corporation, 3 Conn. App. 310, 316, 487 A.2d 1110 (1985); see generally LaCroix v. Board of Education, 199 Conn. 70, 75, 505 A.2d 1233 (1986). We answer this question in the affirmative.

We first examine the propriety of plain error review of the trial court’s instruction regarding the statute of frauds. The trial court told the jury that “to determine whether an express contract of employment of a nature [the plaintiff] claims did exist, you cannot rely on anything that [the plaintiff] or any other witness may have said with regard to oral promises made to [the plaintiff] about a contract of employment with the defendant .... It is the law of this state that they could not be the basis of a contract of employment ... for any agreement that is not to be performed within one year of the making thereof must be in writing.” The defendant claims the Appellate Court erred in reviewing this instruction under the plain error doctrine because Connecticut law is “unsettled” on the issue of whether the statute of frauds applies to an employment contract of indefinite duration. It further claims that the parties’ alleged contract “had a minimum intended term of more than one year,” and that, therefore, the contract was subject to the statute of frauds provision that “any agreement that is not to be performed within one year from the making thereof” must be evidenced by a writing signed by the party to be charged or its agent. General Statutes § 52-550 (a) (5). We disagree.

Despite a dearth of recent Connecticut case law on the subject, our most apposite precedent comports with the majority view that a contract of indefinite duration is not subject to the “one year” provision of the statute of frauds. Burkle v. Superflow Mfg. Co., 137 Conn. 488, 493, 78 A.2d 698 (1951); see 1 Restatement (Second), Contracts (1979) § 130, comment a; 2 A. Corbin, Contracts (1950) §§ 444 through 445; 3 S. Williston, Contracts (3d Ed. Jaeger) § 500. “Under the prevailing interpretation, the enforceability of a contract under the one year provision does not turn on the actual course of subsequent events, nor on the expectations of the parties as to the probabilities. Contracts of uncertain duration are simply excluded; the provision covers only those contracts whose performance cannot possibly be completed within a year.” (Emphasis added.) 1 Restatement (Second), Contracts, supra; Burkle v. Superflow Mfg. Co., supra. The plaintiff’s alleged employment contract was of indefinite duration. The defendant does not claim that it could not possibly be performed within a year. We conclude, therefore, that the Appellate Court did not abuse its discretion in concluding that the trial court’s instruction was plain error reviewable under Practice Book § 3063.

We now turn to the defendant’s claim that the Appellate Court erred in reviewing the trial court’s instruction on the personnel manual under the plain error doctrine. The trial court instructed the jury in the following manner: “[Y]ou cannot rely solely on anything written in [the defendant’s] employment manual to determine whether the contract of employment [the plaintiff] claims existed did, in fact, exist. Although there has been introduced evidence from the employment manual; there has been testimony about these pages of the employment manual, it is the law in this state that without further explicit indication from the defendant . . . that an employment manual cannot form a sole basis of a contract between the plaintiff and the defendant.” The defendant argues that, like the instruction on the statute of frauds, this instruction was not a “clear misapplication of a settled rule of law.” We disagree.

The defendant correctly asserts that it is not “settled” law in Connecticut that statements in an employer’s personnel manual may form the basis of a contract between employer and employee. This court, however, has never held, as the trial court instructed the jury, that such statements cannot form the basis for such a contract. To the contrary, we have stated only recently that such representations, under appropriate circumstances, may give rise to an express or implied contract between employer and employee. Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 564, 479 A.2d 781 (1984); see generally Dolak v. Sullivan, 145 Conn. 497, 503, 144 A.2d 312 (1958) (statements in written retirement plan gave rise to employer-employee contract); Tilbert v. Eagle Lock Co., 116 Conn. 357, 361-63, 165 A. 205 (1933) (assurances in employee benefit plan constituted enforceable promise to pay benefits in accordance with plan).

In the present case, statements in the defendant’s personnel manual were of critical relevance to the issue of whether an express contract existed between the defendant and the plaintiff. “ ‘The intention of the parties manifested by their words and acts is essential to determine whether a contract was entered into and what its terms were. . . .’ ” Hydro-Hercules Corporation v. Gary Excavating, Inc., 166 Conn. 647, 652, 353 A.2d 714 (1974). The relevant statements in the defendant’s personnel manual certainly could have been interpreted as noncontractual. In the absence of “definitive contract language,” however, “the determination of what the parties intended to encompass in their contractual commitments is a question of the intention of the parties, and an inference of fact.” Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981). In this case, therefore, whether the defendant’s personnel manual gave rise to an express contract between the parties was a question of fact properly to be determined by the jury. See Toussaint v. Blue Cross, 408 Mich. 579, 613-14, 292 N.W.2d 880 (1980); Pine River State Bank v. Mettille, 333 N.W.2d 622, 628 (Minn. 1983); Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 465-66, 443 N.E.2d 441, 457 N.Y.S.2d 193 (1982). The Appellate Court did not, therefore, abuse its discretion in granting review of the trial court’s instruction under the plain error doctrine.

II

In an argument ancillary to its claim that the Appellate Court erroneously granted review under the plain error doctrine, the defendant claims that any error in the trial court’s charge to the jury was harmless. In regard to the instruction barring the jury from considering the defendant’s oral statements as the basis for a contract, the defendant claims any error was harmless because the plaintiff failed to introduce evidence of oral statements that would tend to support a contract claim. The Appellate Court, however, found evidence in the record to support its conclusion that the defendant, through its agents, did make oral representations to the plaintiff which the jury could reasonably have interpreted as supporting the plaintiff’s claim of an express contract. The Appellate Court could reasonably have concluded that the jury should have had the opportunity to consider these oral representations in making the factual determination of whether such a contract existed. The trial court’s erroneous instruction deprived it of this opportunity. We therefore conclude that the instruction was not harmless.

The defendant’s next claim is that any error in the trial court’s instruction on the personnel manual was harmless because, in terminating the plaintiff, the defendant complied with the procedures outlined in its personnel manual. This claim requires little discussion. The trial court’s instructions prohibited the jury from finding a contract based on the representations contained in the personnel manual. The defendant now asks us to conclude that the jury was obliged to find in its favor on a question of fact which the court forbade it to consider. As we held earlier in this opinion, the import of the defendant’s personnel manual in resolving the plaintiff’s claim of an express contract was a question of fact. The Appellate Court could reasonably have concluded that “[t]he plaintiff was entitled to have [this] critical factual issue in the case presented to the jury pursuant to proper principles of law.” Finley v. Aetna Life & Casualty Co., supra, 413. Accordingly, we conclude that the erroneous instruction on the defendant’s personnel manual was not harmless.

Ill

We now address the defendant’s principal claim of error, that the Appellate Court erred in holding that the general verdict rule did not require that court to sustain the jury verdict for the defendant in spite of any trial court error. The defendant points out that the first count of the plaintiff’s complaint raised two principal claims: first, that a contract existed between the parties; and second, that the defendant’s termination of the plaintiff’s employment, despite his satisfactory job performance, constituted a breach of that contract. The defendant’s answer denied both of these claims. The plaintiff did not submit interrogatories to the jury to determine its findings on each of the plaintiff’s principal claims; Practice Book § 312; and the jury ultimately rendered a general verdict for the defendant.

On appeal, the plaintiff’s claims of error attacked only the trial court’s instructions on the issue raised in the first claim—whether a contract existed—and not the issue raised in the second claim—whether the defendant’s conduct constituted a breach of the contract. The defendant’s answer, however, raised distinct defenses to both of the plaintiff’s principal claims. Because the jury’s verdict for the defendant could have been based on either of these distinct defenses, the defendant now urges that review of the plaintiff’s claim of error is precluded by the general verdict rule. We agree with the defendant that the general verdict rule applies in the present case, and that the verdict for the defendant comprises an “implicit finding” that the plaintiff was terminated for his failure to peform his job satisfactorily.

The plaintiff concedes that even if the jury had found that the parties entered into a contract, it reasonably could have found that the plaintiff was terminated for failing to perform his job satisfactorily. The plaintiff argues, however, that the general verdict rule only applies to multicount complaints, or actions involving one or more special defenses. Because only one count of the plaintiff’s amended complaint, and no special defenses, went to the jury, the plaintiff claims that the general verdict rule is not applicable. The Appellate Court took the same view. Finley v. Aetna Life & Casualty Co., supra, 397. We disagree.

The so-called general verdict rule provides that, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. Stone v. Bastarache, 188 Conn. 201, 204, 449 A.2d 142 (1982); Collucci v. Pinette, 185 Conn. 483, 489, 441 A.2d 574 (1981). The rule applies whenever a verdict for one party could reasonably be rendered on one or more distinct causes of action; see Matthews v. F.M.C. Corporation, 190 Conn. 700, 706, 462 A.2d 376 (1983); or distinct defenses. See Royal Homes, Inc. v. Dalene Hardwood Flooring Co., 151 Conn. 463, 466, 199 A.2d 698 (1964). A party desiring to avoid the effects of the general verdict rule may elicit the specific grounds for the verdict by submitting interrogatories to the jury. Alternatively, if the action is in separate counts, a party may seek separate verdicts on each of the counts. Ziman v. Whitley, 110 Conn. 108, 113-15, 147 A. 370 (1929).

Under the interpretation advanced by the plaintiff, the general verdict rule would apply only if two or more counts of the plaintiffs complaint had been submitted to the jury, or if, for example, the defendant had pleaded the plaintiffs failure to perform his job satisfactorily as a special defense. The application of the general verdict rule, however, does not depend on the niceties of pleading but on the distinctness and sever-ability of the claims and defenses raised at trial. Where, for example, a plaintiff submits to the jury several different specifications of negligent conduct in support of a single cause of action for negligence, we have held that the general verdict rule does not apply. Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147 (1979); McDonough v. Lenox Theater Co., 143 Conn. 646, 648, 124 A.2d 520 (1956). Our rationale for declining to apply the rule in such circumstances is that “the various grounds of negligence alleged are often so interlocked as to make it difficult to consider them separately,” and formulating interrogatories to obtain separate findings on the various claims would “complicate the work of court, jury and counsel.” Ziman v. Whitley, supra, 115. Where, however, a plaintiff submits two or more separate causes of action to the jury, such as a claim for wanton and willful misconduct joined with a claim for simple negligence, the general verdict rule does apply, whether or not the claims are pleaded in separate counts. Id., 116-17; Menzie v. Kalmonowitz, 107 Conn. 197, 200, 139 A. 698 (1928). Likewise, it is the distinctness of the defenses raised, and not the form of their pleading, that is the decisive test governing the applicability of the general verdict rule. Meglio v. Comeau, 137 Conn. 551, 553-54, 79 A.2d 187 (1951). “If the defenses are clearly distinct, the fact that one has not been specially pleaded . . . will not prevent the application of the rule.” Royal Homes, Inc. v. Dalene Hardwood Flooring Co., supra, 466; accord LaFleur v. Farmington River Power Co., 187 Conn. 339, 342, 445 A.2d 924 (1982); Henry A. Finman & Son, Inc. v. Connecticut Truck & Trailer Service Co., 169 Conn. 407, 410, 363 A.2d 86 (1975).

We again emphasize that in the present case the defendant’s answer controverted both of the principal claims raised by the plaintiff’s complaint. The defendant’s denials of the contract’s existence and of its breach presented the jury with distinct and severable defenses to the plaintiff’s claims. See Henry A. Finman & Son, Inc. v. Connecticut Truck & Trailer Service Co., supra. The plaintiff did not request interrogatories to the jury in order to obtain separate jury findings on the controverted issues. While we acknowledge that the trial court’s erroneous instructions would have tainted any jury finding for the defendant on the issue of the contract’s existence, we presume that the jury’s general verdict included a finding that the plaintiff’s termination was justified by his unsatisfactory job performance. Accordingly, we conclude that the verdict for the defendant must be sustained.

IV

Our conclusion that the general verdict rule requires the sustaining of the defendant’s verdict on the first count makes it unnecessary for us to reach the merits of the defendant’s fourth and final claim. That claim is that the Appellate Court erroneously reversed the directed verdict for the defendant on the second count of the plaintiffs complaint, which alleged a cause of action in promissory estoppel. Under a promissory estoppel theory, a party may maintain a claim for damages based upon a promise which induces the party’s action or forbearance, if such action or forbearance is undertaken in reasonable reliance upon the promise. Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 475, 427 A.2d 385 (1980); Hebrew University Assn. v. Nye, 148 Conn. 223, 232, 169 A.2d 641 (1961); 1 Restatement (Second), Contracts (1981) § 90.

In the present case, the plaintiff based his cause of action in the second count upon the defendant’s alleged promise not to terminate him so long as he performed his job satisfactorily. As discussed in part III, supra, we presume that the jury’s general verdict on the first count of the complaint encompassed a finding that the defendant’s termination of the plaintiff was justified by his unsatisfactory job performance. The verdict stands as a final determination of that factual issue. Harry A. Finman & Son, Inc. v. Connecticut Truck & Trailer Service Co., supra, 411.

“ ‘Where a question of fact essential to the judgment is actually litigated and determined by a valid and final judgment, the determination is conclusive between the parties in a subsequent action . . . . ’ ” Brockett v. Jensen, 154 Conn. 328, 337, 225 A.2d 190 (1966), quoting Restatement (Judgments) (1942) § 68; accord Scott v. Scott, 190 Conn. 784, 787, 462 A.2d 1054 (1983). On a subsequent relitigation of the promissory estoppel claim, a jury would be bound by the finding that the defendant’s alleged promise, not to terminate the plaintiff as long as his job performance was satisfactory, was fulfilled according to its terms.

Whatever the possible merits of the plaintiff’s promissory estoppel claim on other grounds, therefore, our resolution of the defendant’s claims on the first count effectively would preclude the plaintiff from prevailing at a new trial on the second count. Accordingly, without addressing the Appellate Court’s disposition of the merits of the plaintiff’s appeal on the second count, we conclude that the court erred in ordering a new trial on that count.

The judgment of the Appellate Court is reversed and the case is remanded with direction to render judgment for the defendant.

In this opinion the other justices concurred.

       The manual provided, in a section subtitled “Involuntary Terminations (Dismissals),” that “[i]t is Company policy to terminate any employee who cannot perform satisfactorily, whose attendance is poor, or who is otherwise unsuited to his job.”

       The plaintiff raised in his preliminary statement of issues, but failed to brief, a claim of error in the granting of the directed verdict on the third count. As a result, the Appellate Court deemed this claim abandoned. Finley v. Aetna Life & Casualty Co., 5 Conn. App. 394, 396 n.1, 499 A.2d 64 (1986).

       Although Practice Book § 3063 (now § 4185) applies by its terms to Supreme Court review of trial court decisions, the rule is also binding on the Appellate Court by virtue of Practice Book § 2000, which provides: “[t]he practice and procedure for appeals to the appellate court shall conform to the rules of practice governing appeals to the supreme court except where a particular practice or procedure is specified by the rules of the appellate court.”

       “[General Statutes] Sec. 52-265. action of supreme court on appeals and WRITS OF error. COSTS, (a) On an appeal or writ of error, if the supreme court finds errors in the rulings or decision of the court below or of a judge thereof when the jurisdiction of any action or proceeding is or shall be vested in him, and unless it is of the opinion that the errors have not materially injured the appellant or plaintiff in error, it may: (1) Render judgment in favor of the appellant or plaintiff in error, together with his costs, or (2) may remand the action to the court below or to a judge thereof having jurisdiction, to be proceeded with by the court or judge to final judgment. If an action is remanded, the whole costs, except the costs on the writ of error or appeal, shall be taxed in favor of the prevailing party, and the costs in the supreme court shall be taxed in favor of the plaintiff in error or appellant.”

       The brief of the Connecticut Business and Industry Association, as amicus curiae, expresses the fear that the Appellate Court’s decision in this regard will make “every termination a potential jury trial.” This fear is unfounded. By eschewing language that could reasonably be construed as a basis for a contractual promise, or by including appropriate disclaimers of the intention to contract, employers can protect themselves against employee contract claims based on statements made in personnel manuals.

       The defendant claims additionally that any errors in the trial court’s charge to the jury were harmless because, as a matter of law, the plaintiff’s case falls within the ambit of the traditional rule that, absent independent consideration, an agreement for “permanent” employment is terminable at the will of either party. See, e.g., Fisher v. Jackson, 142 Conn. 734, 736, 118 A.2d 316 (1955). Since this argument assumes that the plaintiff failed to state a cognizable claim in contract, it necessarily implies that the trial court erred in denying the defendant’s motion for a directed verdict on the first count. The defendant, however, did not include such a claim of error in its brief to the Appellate Court. We therefore decline to consider this same claim, raised interstitially in the defendant’s harmless error argument, on appeal by certification from that court. See Hartford v. Freedom of Information Commission, 201 Conn. 421, 433, 518 A.2d 49 (1986); State v. Torrence, 196 Conn. 430, 434 and n.6, 493 A.2d 865 (1985).