author: Shea, J.

text:
    David Gnutti v. Stephen Heintz, Commissioner of Income Maintenance Wilfred Smalley v. Stephen Heintz, Commissioner of Income Maintenance
    (13146)
    (13173)
    Healey, Shea, Callahan, Glass and Hull, Js.
    Argued January 14
    decision released March 22, 1988

      John P. Spilka and Joanne Lewis, for the appellants (plaintiff in each case).

      Hugh Barber, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (defendant in both cases).
   Shea, J.

These cases are consolidated administrative appeals from the denial of applications for Title XIX medical assistance benefits (Medicaid). Title XIX is a medical program administered by the department of income maintenance (DIM) pursuant to federal statutes and regulations. General Statutes § 17-134a et seq.; 42 U.S.C. § 1396 et seq. (1982); 42 C.F.R. § 430.0 et seq.

The plaintiffs David Gnutti and Wilfred Smalley applied separately for disability benefits from the federal Social Security Administration under the Supplemental Security Income (SSI) program. 42 U.S.C. § 1381 et seq. (1982). Each claimed that he was an alcoholic, and was disabled from working as a result of his alcoholism. The Social Security Administration denied each plaintiffs application. Both determinations are presently in various stages of review in accordance with the federal administrative and judicial process.

After having initially been denied federal social security disability benefits, each plaintiff filed a separate application with the DIM for Medicaid disability benefits on the basis that his alcoholism had rendered him unable to work. The standard used for determining disability for the purpose of eligibility for SSI benefits is the same as that used by the DIM in deciding whether an applicant qualifies for Medicaid disability benefits. Neither plaintiff had exhausted his federal administrative or judicial remedies for obtaining federal SSI disability benefits. There was no claim by either plaintiff when he applied to the DIM that his medical condition had changed since the time he applied for SSI disability benefits. A medical review team (team) employed by the DIM examined each plaintiff. The team found each plaintiff to be ineligible for disability benefits. The plaintiffs requested hearings before a fair hearing officer (FHO). The FHO who conducted the hearing concerning Gnutti found that he was able to work despite his alcoholism, and, as a result, determined that he was ineligible for Medicaid disability benefits. Gnutti appealed to the Superior Court, R. O’Connell, J., which upheld the decision of the FHO. The FHO who conducted the hearing in the case of Smalley found that he too was able to work despite his alcoholism, and, as a result, determined that he was ineligible for Medicaid disability benefits. Smalley appealed to the Superior Court, Purtill, J., which upheld the decision of the FHO.

In these consolidated appeals from the two judgments, each plaintiff claims that the trial court in his case erred: (1) in finding that the DIM was not bound by federal law; (2) in failing to conclude that the standards applied in determining disability are arbitrary and illegal; and (3) in concluding that there was sub-, stantial evidence to support the decision of the FHO that he was not disabled. Gnutti claims further that the trial court in his case erred in not vacating the decision of the FHO when there was evidence that the FHO had improperly consulted medical vocational guidelines in determining that he was not disabled. Smalley raises an additional claim that the trial court erred in determining that the findings of fact made by the FHO in his case were sufficient to support the conclusion that he was not disabled.

The defendant maintains that there is an alternative ground for affirming the judgments below that renders it unnecessary for this court to review the plaintiffs’ claims. This contention is that under federal law the DIM may not grant medicaid disability benefits to persons who have been denied SSI disability benefits by the Social Security Administration.

We conclude that our courts should abstain from considering Medicaid disability claims until a person who has applied for SSI disability benefits has exhausted all federal administrative or judicial avenues for obtaining such relief. In view of our determination, we shall not review the plaintiffs’ claims. We shall, however, briefly examine the defendant’s alternative ground for affirmance in reaching our conclusion that these appeals should be remanded to the trial court to be stayed until the ongoing federal administrative and judicial proceedings for the determination of whether each plaintiff is disabled have been completed.

I

The defendant argues that the DIM may not grant Medicaid disability benefits to those who have been found ineligible for SSI disability benefits because the United States Department of Health and Human Services (HHS) has imposed that policy upon it. In Rousseau v. Bordeleau, 624 F. Sup. 355 (D.R.I. 1985), however, the federal district court rejected a similar argument and held that the state of Rhode Island could not automatically deny Medicaid disability benefits to those who had been found ineligible for SSI disability benefits, because the HHS policy statement did not have the force of a federal regulation binding upon state agencies administering the Medicaid program. The Rousseau court noted that “[a] policy statement appears to be an internal determination of the [HHS], not subject to public comment as are regulations. Thus, an action twice removed from the statement of Congressional policy is at issue. As a policy statement, there is no basis to afford particular weight to the [HHS’s] statement.” Id., 358. The Rousseau court held: “The statute and regulations require that applications for Medical Assistance be reviewed independently of any denial action made by the Social Security Administration. A fair hearing process requires not only an independent review of an applicant’s claim of disability but also the possibility of a result different from the federal determination.” Id., 361.

Rousseau is the only case directly on point in this area. One federal court has cited the Rousseau case with approval. Mullins v. Kenley, 639 F. Sup. 1252, 1260 n.10 (W.D. Va. 1986), aff’d in part, rev’d in part on other grounds sub nom. Mullins v. Lukhard, 816 F.2d 672 (4th Cir. 1987). On December 14, 1987, HHS issued proposed federal regulations that would forbid states from granting Medicaid disability benefits to persons who had been found ineligible for SSI disability benefits. 52 Fed. Reg. 47,414-47,718 (1987). HHS in these proposed regulations expressed strong disagreement with the Rousseau decision. Id., 47,416. The defendant has conceded that these proposed regulations, if adopted after the comment period expires, would have only a prospective effect, and would not render this appeal moot.

The defendant has sought to distinguish this case from Rousseau. Rhode Island is an “SSI” state that employs the same financial eligibility standards in its Medicaid programs that the Social Security Administraton uses in its SSI program. On the other hand, Connecticut is a “Section 209 (b)” state, and is somewhat more restrictive than SSI in terms of financial eligibility. 42 U.S.C. § 1396a (f); 42 C.F.R. § 435.121; Schweiker v. Gray Panthers, 453 U.S. 34, 38, 101 S. Ct. 2633, 69 L. Ed. 2d 460 (1981). The defendant concedes, however, that the DIM employs the same definition of disability as does the SSI. There is no difference between Connecticut and Rhode Island in their definition of disability requirements for receiving Medicaid benefits. There are no meaningful distinctions that would allow us to distinguish this case from Rousseau. If this court were to agree with the defendant’s alternative ground for affirmance, we must disagree with the reasoning in Rousseau.

We agree with the defendant, however, that it makes little sense to have the DIM duplicate the work of the Social Security Administration in evaluating a person’s disability claim when both agencies employ the same definition of disability. This court does not believe that due process requires duplicative review merely because two different agencies applying the same standards may reach different results.

This court, however, has had little experience in interpreting Social Security statutes and regulations, and, therefore, it would be somewhat presumptuous for us to reject Rousseau. According to the United States Supreme Court, “[t]he Social Security Act is among the most intricate ever drafted by Congress. Its Byzantine construction, as Judge Friendly has observed, makes the Act ‘almost unintelligible to the uninitiated.’ Friedman v. Berger, 547 F.2d 724, 727 n.7 ([2d Cir.] 1976), cert. denied, 430 U.S. 984 [97 S. Ct. 1681, 52 L. Ed. 2d 378] (1977).” Schweiker v. Gray Panthers, supra, 43. “[T]he Medicaid program is a morass of bureaucratic complexity . . . .” Herweg v. Ray, 455 U.S. 265, 279, 102 S. Ct. 1059, 71 L. Ed. 2d 137 (1982) (Burger, C. J., dissenting). We decline at this time to determine whether the extraordinarily complex Social Security and Medicaid statutes and regulations require the defendant to deny Medicaid disability benefits to persons who are ineligible for SSI disability benefits.

II

We conclude that our courts should abstain from considering Medicaid disability claims until a person has exhausted federal administrative and judicial avenues for obtaining SSI benefits that he is pursuing simultaneously.

The United States Supreme Court in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941), held that federal courts should abstain from deciding a federal constitutional question until a state court has resolved questions of state law where the state determination might render the federal question moot. “Such constitutional adjudication plainly can be avoided if a definitive ruling on the state issue would terminate the controversy.” Id., 498. Pullman Co. involved review of state administrative action, and federal courts have applied the abstention doctrine in the context of state judicial and administrative proceedings. Under the abstention doctrine, federal courts stay their consideration of federal questions until a litigant has exhausted his state administrative and judicial remedies. “The rule of exhaustion . . . is rooted in considerations of federal-state comity. That principle was defined in Younger v. Harris, 401 U.S. 37, 44 [91 S. Ct. 746, 27 L. Ed. 2d 669] (1971), as ‘a proper respect for state functions,’ and it has as much relevance in areas of particular state administrative concern as it does where state judicial action is being attacked.” Preiser v. Rodriguez, 411 U.S. 475, 491, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973).

We conclude that abstention principles apply equally well where ongoing federal administrative or judicial proceedings may render a case in this court moot. The defendant has conceded that the DIM must provide Medicaid benefits to a person if the Social Security Administration determines that he is disabled. Each plaintiff is pursuing judicial and administrative appeals contesting the Social Security Administration’s initial denial of his application for SSI disability benefits. If either plaintiff succeeds in his federal appeal, his state case will become moot. In fiscal year 1986 federal administrative law judges (ALJ) heard 151,752 cases involving persons who had been denied Social Security disability benefits. House Comm, on Ways and Means, Background Material and Data on Major Programs Within the Jurisdiction of the Committee on Ways and Means, W.M.C.P. 100-4, 100th Cong., 1st Sess. 42 (1987). In 78,737 or 51.9 percent of these cases ALJs reversed the decision of the Social Security Administration, and found the applicant to be disabled. Id. There is a substantial possibility that one or both of these plaintiffs will succeed in his federal appeal, and, therefore, his state Medicaid case will become moot.

We hold that our courts should abstain from considering Medicaid disability claims where a person is also pursuing federal administrative or judicial procedures for obtaining SSI benefits. Accordingly, the trial court should have stayed the administrative appeal of each of these plaintiffs until their federal remedies for a determination of their disability status had been exhausted.

The judgments dismissing each appeal on its merits are set aside and each case is remanded to the trial court for further proceedings consistent with this opinion.

In this opinion the other justices concurred.

       The parties agree that federal substantive law controls in determining eligibility for Medicaid benefits. They disagree about whether the defendant must follow the five step procedure employed by the Social Security Administration.

       Counsel for the plaintiffs provided the following information concerning their federal appeals in a letter dated January 25, 1988. David Gnutti’s disability case was appealed to the federal District Court for Connecticut. The federal District Court remanded the case to the Social Security Appeals Council in Arlington, Virginia. The Appeals Council vacated the administrative law judge’s (ALJ) unfavorable decision on the issue of disability, and, in accordance with the federal District Court’s order, has directed the ALJ to obtain further evidence concerning Gnutti’s medical status. Gnutti’s case is now pending before the Office of Hearings and Appeals in Hartford. The ALJ must issue a recommended decision after reviewing all the evidence in the file. It is possible that another evidentiary hearing will be conducted. Wilfred Smalley’s disability case is pending before the Office of Hearings and Appeals in Hartford. He has not yet had an administrative hearing on the issue of disability. His case should be scheduled for a hearing before an ALJ in March or April, 1988.

       The Congress has established the following definition of disability for both Social Security and Medicaid programs: “The term ‘disability’ means— (A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months . . . .” 42 U.S.C. § 423 (d) (1) (1982).

       The defendant described his alternative ground for affirmance as follows: “The Department [of Income Maintenance] may not grant Medicaid under the ‘medically needy’ option when the [plaintiffs] are financially able for categorical assistance.” The thrust of the defendant’s argument in pursuing this alternative ground for affirmance, both in Ms brief and at oral argument, was that the DIM could not grant Medicaid disability benefits to a person who had been found ineligible for SSI disability benefits. Therefore, we have restated the defendant’s alternative ground for the sake of convenience.

       Under the “Section 209 (b)” option states can elect to provide Medicaid assistance only to those individuals who would have been eligible under that state’s Medicaid plan in effect on January 1, 1972. Schweiker v. Gray Panthers, 453 U.S. 34, 38-39, 101 S. Ct. 2633, 69 L. Ed. 2d 460 (1981). “SSI” states follow the federal rules for financial eligibility, which are more liberal. Id.

       These abstention and exhaustion principles would be pertinent where a person has first applied to the DIM for Medicaid disability benefits, and subsequently seeks Social Security disability benefits. If a person, however, chooses to apply only to the DIM for Medicaid disability benefits, and declines to apply for Social Security disability benefits, then our courts will not invoke these abstention and exhaustion principles even where a person could have sought federal disability benefits.

       See footnote 2, supra.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Una Bowen v. Stephen Heintz, Commissioner of Income Maintenance
    (13172)
    Healey, Shea, Callahan, Glass and Hull, Js.
    Argued January 14
    decision released March 22, 1988

      Edmund C. Walsh, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Martin Rosenfeld, assistant attorney general, for the appellant (defendant).

      Lucy Potter, for the appellee (plaintiff).
   Per Curiam.

The defendant appeals from a judgment of the trial court reversing a decision of a hearing officer of the department of income maintenance (DIM). The hearing officer had upheld the action taken by DIM when it found the family unit of the plaintiff, Una Bowen, and her two minor children, Christopher and Devon, no longer eligible to receive public assistance benefits under the Aid to Families with Dependent Children program (AFDC), authorized under 42 U.S.C. § 601 et seq. DIM had taken into consideration, when making a redetermination of the plaintiffs family unit’s eligibility for AFDC, the income that Christopher was receiving as the surviving minor child of his deceased father under Title II of the Social Security Act (OASDI). The hearing officer held that this result was mandated by the Deficit Reduction Act of 1984 (DEFRA), Pub. L. No. 98-369 § 2640 (a), codified at 42 U.S.C. § 602 (a) (38) (1985 Sup.), and regulations relating thereto contained in 45 C.F.R. § 206.10 (a) (i) through (vii). The hearing officer decided: that the AFDC benefits should be discontinued for the plaintiffs family of three members; that Christopher’s income, as well as Devon’s income, must be used for the support of all members in the family comprising the assistance unit, and that, since the income exceeded the $505 per month standard of need, assistance must be discontinued. The plaintiff appealed to the Superior Court pursuant to General Statutes § 4-183.

The following is a summary of facts stipulated to before the trial court. On June 13, 1986, the plaintiff was granted AFDC benefits for herself and her two children, Christopher and Devon. When AFDC was granted, the only income noted for the three person assistance unit was $100 per month in support payments for Devon. The plaintiff’s child, Devon, is a dependent child because his father is absent from the child’s home and he receives support payments from him. Christopher has been granted Social Security benefits on his deceased father’s account. His income is $584 per month in Social Security benefits. The plaintiff desires continued AFDC benefits for herself and Devon only.

On July 11, 1986, the plaintiff was appointed guardian of the estate of her son, Christopher, by the Probate Court for the district of West Hartford. In appointing the plaintiff guardian, the Probate Court directed her to restrict expenditures of Christopher’s Social Security benefits to Christopher’s needs, and 25 percent of the household expenses.

On July 18, 1986, the defendant notified the plaintiff that he proposed to discontinue her AFDC benfits because her income exceeded her needs. The income referred to was Christopher’s Social Security benefits and Devon’s support payments. The plaintiff was afforded a fair hearing on August 11, 1986, at which the proposed termination of her benefits was upheld for the reason stated.

The plaintiff’s weekly household expenses are approximately $184.50. Her weekly income, including child support payments for Devon and only that portion of Christopher’s Social Security benefits she is allowed to spend under the Probate Court’s order, is $89.50.

The court found that DIM had erred in including Christopher in the assistance unit and sustained the plaintiff’s appeal.The court concluded that a proper interpretation of 42 U.S.C. § 602 (a) (38) first required a determination of dependency under 42 U.S.C. § 606 (a) and General Statutes § 17-82.It then concluded that Christopher was not a dependent child under these provisions. It found that while Christopher was under eighteen and lived with his mother in a residence maintained by her as their home, he did not meet the additional criterion of being a needy child deprived of parental support and care because he received $584 per month in OASDI benefits. It decided that Christopher does not meet the eligibility requirements of the state or federal statutes and should not, therefore, be included in the assistance unit with his mother and brother. The court remanded the action to DIM with instructions to exclude Christopher and his income from the assistance unit when determining AFDC eligibility of the plaintiff and her son Devon.

The court ruled for the plaintiff on the statutory issue only and did not reach the issues raised by the plaintiff as to whether Christopher’s OASDI funds were made “unavailable” by the order of the Probate Court or whether his constitutional rights were violated by applying his OASDI income to the assistance unit. The defendant’s sole issue on appeal is that the court erred in not finding that 42 U.S.C. § 602 (a) (38) requires that a minor child receiving OASDI benefits be included in the AFDC assistance unit. The plaintiff briefed this issue and asserted four alternate grounds for sustaining the judgment: (1) a child’s OASDI income restricted under a Probate Court order cannot be considered available for AFDC purposes under 42 U.S.C. § 602 (a) (38); (2) the DIM may not implement a federal AFDC provision which contravenes General Statutes §§ 17-82e and 17-85 and Connecticut probate law; (3) the defendant’s policy, which precludes the plaintiff from showing that she has no available income under the terms of 42 U.S.C. § 602 (a) (38), creates an unconstitutional irrebutable presumption; and (4) the defendant’s policy of diverting the legally restricted income of a minor to the support of the minor’s family constitutes a taking in violation of the state and federal constitutions.

The defendant claimed at oral argument that Bowen v. Gilliard, 483 U.S. 587, 593 n.5, 107 S. Ct. 3008, 97 L. Ed. 2d 485 (1987), is dispositive of the principal issue in this case.

In 1984, Congress amended the statute authorizing AFDC to require that a family’s eligibility for benefits must take into account, with certain specified exceptions, the income of all parents, brothers and sisters living in the same house. Id., 589. The principal question in Bowen was whether this requirement violated the fifth amendment to the United States constitution when it was applied to require a family wishing to receive AFDC to include within its unit a child for whom child support payments were being made by a noncustodial parent.

The United States Supreme Court ruled that the amendments involved did not conflict with the due process clause and the taking clause of the fifth amendment. Id., 3018, 3021. The court stated that the District Court had carefully considered statutory arguments concerning child support orders in general and rejected them, citing Gilliard v. Kirk, 633 F. Sup. 1529, 1548 (W.D.N.C. 1986). “We agree with that court’s analysis of the meaning of the statute and find no merit in appellees’ statutory arguments advanced in this Court. See also Gorrie v. Bowen, 809 F.2d 508, 513-16 ([8th Cir.] 1987).” Bowen v. Gilliard, supra, 593 n.5. The District Court stated: “[T]he only way Congress can have made the statutory presumption of availability effective is by pre-empting that portion of state child support laws that makes the child support money the exclusive property of the child in whose name the child support order was issued or in whose name the money was voluntarily delivered, regardless of the mother’s handling or distribution of the funds. Otherwise, the child’s money would be unavailable under state law and the statutory presumption would be only a figment of the congressional imagination.” Gilliard v. Kirk, supra, 1547. It flatly held that “the language and legislative history of the 1984 DEFRA amendment demonstrate congressional intent to pre-empt state law restrictions on the use of child support that would prevent the state from treating one child’s support income as family income.” Id., 1548. In Gorrie v. Bowen, supra, 514, the Court of Appeals for the Eighth Circuit stated that “[t]he statutory language . . . reveals that Congress intended by adopting section 602 (a) (38) to affect both child support payments and Title II Social Security benefits.” “The statute [§ 602 (a) (38)] and its legislative history indicate that Congress intended that all coresident siblings of a dependent child applying for AFDC and their income, including Title II Social Security benefits and child support, should be counted in determining need and thus eligibility for AFDC assistance.” Id., 516.

The plaintiff in this case conceded that the trial court had erred in concluding that a minor child receiving OASDI benefits need not be included in the AFDC assistance unit. She also conceded that Bowen foreclosed her fourth alternate ground for sustaining the judgment. The defendant claimed that Bowen v. Gilliard, supra, also determined adversely the plaintiff’s third alternate ground for sustaining the judgment. The plaintiff claimed, however, that her first, second and third alternate grounds survived Bowen v. Gilliard, supra.

We need wade no further into this esoteric swamp. The plaintiff claimed at oral argument that the case is moot in that the plaintiff has not been receiving AFDC benefits since May 1, 1987. The defendant did not contest this factual claim. The plaintiff further noted her continuing obligation as the parent of an AFDC beneficiary to repay to the state the full amount of any such aid paid to or on behalf of her children, under General Statutes § 17-83e. The plaintiffs first, second and third alternate grounds for affirming the judgment above, although described in varying terminology, all involve the narrow issue of the effect of a Probate Court order limiting the use of a minor’s Social Security benefits on a family’s eligibility for AFDC benefits.

“ ‘It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. Connecticut State Employees Assn. v. AFSCME, 188 Conn. 196, 199, 448 A.2d 1341 (1982); Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 440 A.2d 310 (1982).’ State v. Macri, 189 Conn. 568, 569, 456 A.2d 1203 (1983); see also Shays v. Local Grievance Committee, 197 Conn. 566, 571-74, 499 A.2d 1158 (1985).” Hartford Principals’ & Supervisors’ Assn. v. Shedd, 202 Conn. 492, 496, 522 A.2d 264 (1987). The defendant did not claim in opposition to the plaintiff’s claim of mootness that the case is not moot because, it presents a situation that is “ ' “capable of repetition, yet evading review.” ’ ” Id., 498.

The appeal is dismissed for mootness.


text:
    Town of East Hartford v. East Hartford Municipal Employees Union, Inc., et al.
    (13187)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued January 7
    decision released March 22, 1988

      Robert J. Krzys, for the appellant (named defendant).

      David A. Zipfel, with whom, on the brief, were Barry S. Zitser, corporation counsel, and Jose Ramirez, for the appellee (plaintiff).
   Shea, J.

The only issue presented by this appeal is whether the Appellate Court was correct in concluding that the trial court had the authority to substitute its own finding of the untimeliness of a grievance complaint by a discharged employee for the arbitrators’ finding of timeliness when, as part of an unlimited submission to arbitration, the parties have empowered the arbitrators to decide the question of arbitrability. We conclude that the trial court did not have such authority. Accordingly, we reverse the judgment of the Appellate Court, and remand the case to that court with direction that it then be remanded to the trial court for reinstatement of the findings of the arbitrators concerning timeliness.

The facts pertinent to this appeal are not disputed. The defendant East Hartford Municipal Employees Union, Inc. (union), and the plaintiff town of East Hartford (town) entered into a collective bargaining agreement for the period July 1, 1980, to June 30, 1982, in which the union was recognized as the bargaining agent for certain town employees. For approximately two and one-half years prior to August, 1981, Diane Fontanella, an employee covered by the contract, worked as an information technician for the police department. In August, 1981, Fontanella scored first on a promotional examination for the position of caseworker in the social services department and, as a result, was offered the job. That month she began to serve a mandatory three month period of probation. The town’s personnel rules provide that the three month period of probation may be extended for up to two additional months. At the request of Fontanella’s supervisor, the town’s personnel director extended the probationary period for one month commencing November 10, 1981.

On November 19, 1981, the town notified Fontanella by letter that her employment as a caseworker was terminated on the ground that her work performance had been unsatisfactory. A second letter that same day instructed her that she could resume her previous position in the police department. Fontanella had previously informed the town’s personnel director that she did not wish to return to her previous job as an information technician. She left the department of social services on November 19, 1981. By a letter dated November 23, 1981, the deputy chief of the police department informed Fontanella that her employment with the town was terminated because she had failed to resume her previous job in the police department. On December 21, 1981, Fontanella filed a written complaint with the personnel director concerning her termination. The town refused to hold a hearing concerning her complaint because it claimed that probationary employees had no appeal rights under the contract. The union did not file a formal grievance until March 26, 1982.

The union’s challenge to the town’s termination of Fontanella was submitted to a panel of arbitrators acting as the state board of mediation and arbitration. As the town has conceded, this submission was unrestricted and thus the arbitrators had authority to decide the question of arbitrability as well as the substantive issues involved in the dispute. The town argued that the arbitrators lacked jurisdiction to resolve Fontanella’s claim on the ground that the grievance was not timely under the parties’ collective bargaining agreement because the union did not file a formal grievance until 127 days after her termination from the caseworker position. Section 13.3 of the collective bargaining agreement provides that “[e]mployee grievances must be indicated no later than thirty (30) days following the date of the incident giving rise to the alleged grievance . . . .” Notwithstanding the objection concerning untimeliness, the arbitrators found the dispute arbitrable. “The Panel majority finds that the Town’s objection as to the time limits should be dismissed as [a] result of its own continuous violation of [Fontanella’s] rights to the grievance and arbitration process under the contract. Where a grievance is one which is continuous in nature, time periods should not apply.” The arbitrators found that Fontanella had been discharged without just cause and was entitled to reinstatement as a caseworker with commensurate benefits.

The town applied to the Superior Court to vacate the arbitrators’ award. The trial court vacated the award on the ground that the grievance was not timely because it had been filed beyond the thirty day limit set forth in the parties’ agreement. The union then filed an appeal with the Appellate Court. The town cross appealed, setting forth alternative grounds to sustain the trial court’s decision. The Appellate Court affirmed the trial court’s decision without dismissing the cross appeals or considering these alternative grounds. East Hartford v. East Hartford Municipal Employees Union, Inc., 10 Conn. App. 611, 612, 618, 525 A.2d 112 (1987). The town has also raised in this court four alternative grounds for affirming the decision of the Appellate Court. The town conceded at oral argument that the trial court did not make findings concerning these alternative grounds, and, therefore, an adequate record did not exist for this court to review these issues. In view of our conclusion that the trial court did not have the authority to substitute its own finding of timeliness, we remand these four remaining issues to the Appellate Court to be remanded to the trial court for determination.

In Costello Construction Corporation v. Teamsters Local 559, 167 Conn. 315, 318, 355 A.2d 279 (1974), where we reversed a trial court’s decision to vacate an arbitrator’s award, we defined the scope of judicial review applicable when, as part of an unlimited submission to arbitration, the parties have empowered the arbitrators to decide the question of arbitrability. “The scope of judicial review of an arbitration award is limited by statute and by the contractual agreement between the parties. Where by the parties’ agreement the question of arbitrability is clearly committed to the arbitrator for determination, the court is bound by the arbitrator’s determination unless that determination clearly falls within the proscriptions of § 52-418 of the General Statutes, or procedurally violates the parties’ agreement. ” (Emphasis added.) Id. It is not entirely clear that the Costello court intended by the italicized phrase that the scope of review for procedural issues be enlarged beyond that prescribed by § 52-418, because the court ultimately found that the trial court had erred in overturning the arbitrator’s determination of a procedural issue in that case which also had involved timeliness. Later cases, however, have repeated the statement in Costello referring to procedural violations of the contract as grounds for upsetting an award in addition to those specified by § 52-418. O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, 203 Conn. 133, 146, 523 A.2d 1271 (1987); Waterbury Board of Education v. Waterbury Teachers Assn., 168 Conn. 54, 62-63, 357 A.2d 466 (1975). The Appellate Court in the case at bar viewed the Costello decision as expanding the scope of review by the Superior Court beyond that defined in § 52-418. “A trial court’s review of the arbitrator’s decision on arbitrability, however, includes the question of whether the arbitrators’ conclusion ‘procedurally violates the parties’ agreement.’ Costello Construction Corporation v. Teamsters Local 559, supra, 318. We have held that the failure to file a timely grievance is a question of procedure stemming from the agreement itself. See Flynn v. Newington, [2 Conn. App. 230, 235, 477 A.2d 1028, cert. denied, 194 Conn. 804, 428 A.2d 709 (1984)]. The trial court, therefore, had the authority to substitute its finding that the grievance was not filed until March 26,1982, for the arbitrators’ finding. Since the grievance was late, the court concluded that arbitration of the merits was precluded. We conclude that the trial court did not exceed its scope of review and properly vacated the award rendered in favor of the union.” East Hartford v. East Hartford Municipal Employees Union, Inc., supra, 617-18.

Relying upon the Costello pronouncement and its progeny, the town contends that our courts should employ a different standard of review for an arbitrator’s procedural determinations than for his substantive ones. Section 52-418, however, defines the statutory grounds upon which a court may vacate an arbitrator’s award and cannot be construed to create any distinction in the standard of review applicable to his decision of procedural as opposed to substantive questions. In the absence of a legislative directive, we are not inclined in this instance to enlarge the grounds for upsetting voluntary arbitration awards beyond those prescribed by the statute. Accordingly, we overrule the statement in Costello implying that the review of the procedural determination of an arbitrator is not restricted by the criteria established by § 52-418. For this conclusion we rely not only upon our interpretation that the statute was intended to include all of the grounds the legislature regarded as justifying the vacating of an award but also upon the great weight of authority, which has rejected any distinction between procedural and substantive determinations in defining the scope of judicial review of arbitration awards.

The United States Supreme Court in Wiley & Sons v. Livingston, 376 U.S. 543, 556-59, 84 S. Ct. 909, 11 L. Ed. 2d 898 (1964), held that an arbitrator’s determination of procedural questions growing out of a dispute is entitled to the same degree of judicial deference as his conclusions concerning substantive claims. “We think that labor disputes . . . cannot be broken down so easily into their ‘substantive’ and ‘procedural’ aspects. Questions concerning the procedural prerequisites to arbitration do not arise in a vacuum; they develop in the context of an actual dispute about the rights of the parties to the contract or those covered by it ... . Doubt whether grievance procedures or some part of them apply to a particular dispute, whether such procedures have been followed or excused, or whether the unexcused failure to follow them avoids the duty to arbitrate cannot ordinarily be answered without consideration of the merits of the dispute which is presented for arbitration. ... It would be a curious rule which required that intertwined issues of ‘substance’ and ‘procedure’ growing out of a single dispute and raising the same questions on the same facts had to be carved up between two different forums, one deciding after the other. Neither logic nor considerations of policy compel such a result. . . . Reservation of ‘procedural’ issues for the courts would thus not only create the difficult task of separating related issues, but would also produce frequent duplication of effort.” Id., 556-58.

Many state courts have rejected the distinction between procedural and substantive determinations in arbitration awards, and have employed the same standard of review when they examine either an arbitrator’s interpretation of the substantive provisions of the contract or his construction of its procedural provisions. Butchers Union Local 532 v. Farmers Markets, 67 Cal. App. 3d 905, 911-13, 136 Cal. Rptr. 894 (1977); Pettinaro Construction Co. v. Harry C. Partridge, Jr., & Sons, 408 A.2d 957, 963 (Del. Chancery 1979); ADC Construction Co. v. McDaniel Grading, Inc., 177 Ga. App. 223, 227-28, 338 S.E.2d 733 (1985); Carpentersville v. Mayfair Construction Co., 100 Ill. App. 3d 128, 131-32, 426 N.E.2d 558 (1981); Thompson v. Modernfold Industries, 175 Ind. App. 686, 694-95, 373 N.E.2d 916 (1978);Des Moines v. Central Iowa Public Employees Council, 369 N.W.2d 442, 445-46 (Iowa 1985); Bartley, Inc. v. Jefferson Parish School Board, 302 So. 2d 280, 283 (La. 1974); Board of School Directors v. Tri-Town Teachers Assn., 412 A.2d 990, 993-95 (Me. 1980); Stop & Shop Cos. v. Gilbane Building Co., 364 Mass. 325, 330, 304 N.E.2d 429 (1973); Roseville Community School District v. Roseville Federation of Teachers, 137 Mich. App. 118, 124-27, 357 N.W.2d 829 (1984); Brothers Jurewicz, Inc. v. Atari, Inc., 296 N.W.2d 422, 427 (Minn. 1980); Exber, Inc. v. Sletten Construction Co., 92 Nev. 721, 731-32, 558 P.2d 517 (1976); Standard Motor Freight, Inc. v. Local Union No. 560, 49 N.J. 83, 97, 228 A.2d 329 (1967); Long Island Lumber Co. v. Martin, 15 N.Y.2d 380, 384-87, 207 N.E.2d 190, 259 N.Y.S.2d 142 (1965); Union County School District v. Valley Inland Pacific Constructors, Inc., 59 Or. App. 602, 652 P.2d 349 (1982); Kardon v. Portare, 466 Pa. 306, 310-11, 353 A.2d 368 (1976); School Committee v. Pawtucket Teachers Alliance, 390 A.2d 386, 389-90 (R.I. 1978); but see Stauffer Construction Co. v. Board of Education, 54 Md. App. 658, 665-72, 460 A.2d 609 (1983).

Numerous courts have held that questions of contractual time limits in collective bargaining agreements upon which the arbitrability of a dispute may depend are arbitrable unless the contract specifically provides otherwise, and also have refused to apply a higher standard of review concerning this type of issue. International Union of Operating Engineers, Local 150 v. Flair Builders, Inc., 406 U.S. 487, 490-91, 92 S. Ct. 1710, 32 L. Ed. 2d 248 (1972); Butchers Union Local 532 v. Farmers Markets, supra, 911-13; Pettinaro Construction Co. v. Harry C. Partridge, Jr., & Sons, supra; ADC Construction Co. v. McDaniel Grading, Inc., supra, 227-28; Carpentersville v. Mayfair Construction Co., supra, 132-33; Thompson v. Modernfold Industries, supra; Des Moines v. Central Iowa Public Employees Council, supra; Roseville Community School District v. Roseville Federation of Teachers, supra; Rockland v. Primiano Construction Co., 51 N.Y.2d 1, 11-12, 409 N.E.2d 951, 431 N.Y.S.2d 478 (1980); School District v. Duquesne Education Assn., 475 Pa. 279, 284-85, 380 A.2d 353 (1977); School Committee v. Pawtucket Teachers Alliance, supra. “We agree that whether the demand was made within a reasonable time should be decided by the arbitrators. Because the phrase 'reasonable time’ is a part of the contractual provision here, its meaning in a given case is a matter of contract interpretation and is, therefore, arbitrable. What is a reasonable time presumably will depend on all of the circumstances, including a showing of prejudice to the resisting party, which matters are inevitably intertwined with the merits and involve a weighing of the equities in the context of the particular case. At least one purpose for requiring arbitration is that the parties thought that arbitrators would be more likely to reach an expeditious, satisfactory resolution of their disputes than would a court. . . . Having the arbitrators decide whether the claim was asserted within a reasonable time within the meaning of the contract avoids the possibility that evidence must be presented twice.” Union County School District v. Valley Inland Pacific Constructors, Inc., supra, 354.

The town has cited a few federal cases and one Virginia decision in which courts have set aside an arbitrator’s award because the court found that the arbitrator had committed a palpable procedural error. See, e.g., Detroit Coil Co. v. International Assn. of Machinists & Aerospace Workers, Lodge 82, 594 F.2d 575 (6th Cir.), cert. denied, 444 U.S. 840, 100 S. Ct. 79, 62 L. Ed. 2d 52 (1979); Bakery & Confectionary Workers International of America, Local 111 v. Bridgford Foods Corporation, 423 F. Sup. 124 (N.D. Tex. 1976); United Paperworkers International Union v. Chase Bag Co., 222 Va. 324, 327-28, 281 S.E.2d 807 (1981). These cases are not helpful in supporting the town for two reasons.

First, a broader scope of review of arbitration awards is permitted both in Virginia and the federal courts than in our courts. Federal courts may overturn an arbitration award if the arbitrator “disregard[s]” the law; Local 771, I.A.T.S.E., AFL-CIO v. RKO General, Inc., 546 F.2d 1107, 1113 (2d Cir. 1977); or may vacate the award if “[t]he arbitrator’s conclusion manifests a clear failure to draw the essence of the award from the Agreement.” Detroit Coil Co. v. International Assn. of Machinists & Aerospace Workers, Lodge 82, supra, 581. “Under Virginia law, a court may modify or set aside an arbitrator’s award for errors in procedural, as well as substantive, matters.” United Paperworkers International Union v. Chase Bag Co., supra, 327. Virginia courts will vacate an arbitrator’s award if he commits a “palpable error.” Id., 329. In contrast, we have stated that “[w]here the authority to arbitrate rests wholly upon contract, an unrestricted submission of a dispute to arbitrators carries with it the power to decide with finality all issues of fact or law relating thereto. Meyers v. Lakeridge Development Co., 173 Conn. 133, 135, 376 A.2d 1105 (1977).” Wilson v. Security Ins. Group, 199 Conn. 618, 626, 509 A.2d 467 (1986); see O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, supra, 145-46.

Second, the gravamen of the town’s argument is that this court should make a sharp distinction between issues of procedural and substantive arbitrability. The town has conceded that under our case law a trial court may not vacate an arbitrator’s determination concerning substantive arbitrability, except for violations of § 52-418, when, as part of an unlimited submission to arbitration, the parties have empowered the arbitrators to decide the question of arbitrability. Wilson v. Security Ins. Group, supra, 626-30; Carofano v. Bridgeport, 196 Conn. 623, 636, 495 A.2d 1011 (1985). The federal and Virginia cases the town cites follow the rule of Wiley & Sons v. Livingston, 376 U.S. 543, 556-59, 84 S. Ct. 909, 11 L. Ed. 2d 898 (1964), that the same standard of review should apply regarding both substantive and procedural issues in arbitration awards. United Paperworkers International Union v. Chase Bag Co., supra, 327.

Maryland is the only jurisdiction that has rejected the Wiley rule and held that “[i]n the final analysis, it is for the courts and not the arbitrators to determine the timeliness of a demand for arbitration.” Frederick Contractors, Inc. v. Bel Pre Medical Center, Inc., 274 Md. 307, 314, 334 A.2d 526 (1975); Stauffer Construction Co. v. Board of Education, supra, 666. “[B]y considering the issue of delay in demanding arbitration to be a justiciable rather than an arbitrable one, [the Bel Pre court] regarded the effect of such a delay as going to the (continued) existence or enforceability of the agreement to arbitrate rather than to the validity of the underlying claim. In effect, the [Bel Pre court] treated the matter of delay as one of waiver—that, by failing to make a timely demand, the party had waived his contractual right to resolve the dispute through arbitration.” Stauffer Construction Co. v. Board of Education, supra.

By contrast, this court in Gary Excavating, Inc. v. North Haven, 164 Conn. 119, 121-25, 318 A.2d 84 (1972), held that when a contract provides for unlimited submission of disputes to arbitration it is a matter for the arbitrators, not the courts, to determine whether a party has waived its contractual right to arbitration because of untimeliness in pursuing a complaint. “Failure to follow the steps agreed on as prerequisites to the right to arbitration may bring about waiver; Batter Building Materials Co. v. Kirschner, 142 Conn. 1, 110 A.2d 464 [1954], but in the present case, by virtue of the broad scope of [a provision] of the contract, the appropriate body to hear claims regarding procedural prerequisites to arbitration must be the arbitration panel.” Id., 125. In Gary Excavating, Inc., this court stated that whether arbitrators or courts should resolve questions of timeliness and waiver must be decided on a case by case basis depending on the language of the contract. “In apportioning, between the court and the arbitrators, the responsibility for determining which disputes are arbitrable, the language of the contract controls and determines whether the arbitrability of a dispute is for the court or the arbitrators. A. Sangivanni & Sons v. F. M. Floryan & Co., 158 Conn. 467, 262 A.2d 159 [1969].” Id., 122. “[T]he agreement between the parties remains the focal point for determining whether timeliness and notice requirements are matters for arbitration. A. Sangivanni & Sons v. F. M. Floryan & Co., supra, 471.” Id., 125.

In the case at bar, the collective bargaining agreement provides: “The decision of the arbitrators will be final and binding on both parties.” There are no restrictions in the collective bargaining agreement on what issues may be decided by the arbitrators. Nor is there anything in the contract to indicate that a trial court may review an arbitrator’s determinations concerning procedural questions except as authorized by § 52-418, which is also applicable for review of substantive decisions. By necessary implication, under the language of this agreement there can be no review, beyond that authorized by the statute, of the decision of the arbitrators concerning timeliness.

We hold that a trial court may not substitute its own finding of untimeliness for the arbitrators’ finding of timeliness when, as part of an unlimited submission to arbitration, the parties have contractually empowered the arbitrators to decide the question of arbitrability. We note that when parties freely write contracts providing for arbitration they may exclude certain issues from determination by arbitrators. If a contract provides for the arbitration of substantive issues only, our courts may determine de novo whether an arbitrator’s conclusion “procedurally violates the parties’ agreement.” Costello Construction Corporation v. Teamsters Local 559, supra, 318.

We reverse the judgment of the Appellate Court and remand the case to the Appellate Court with direction to set aside the judgment of the trial court and to remand the case to the trial court for further proceedings.

In this opinion the other justices concurred.

       The town presented the following issues to the Appellate Court on its cross appeal in a preliminary statement of issues dated November 22, 1985:
      “1. Did the Court err by failing to address the presented question of whether the arbitrators exceeded their powers by asserting jurisdiction over a probationary employee, contrary to the Rules and Contract.
      “2. Did the Court err by failing to address the presented question of whether the arbitrators exceeded their powers by the manner in which they framed the issues.
      “3. Did the Court err by failing to address the presented question of whether the finding of arbitrators is in contravention of public policy as expressed in Section 7-474 (f) and (g) of the Connecticut General Statutes.
      “4. Did the Court err by failing to address the presented question of whether the award is in contravention of Section 7-474 (g) of Connecticut General Statutes.
      “5. Did the Court err by failing to address the presented question of the impartiality of the arbitrator, Raymond Shea.
      “6. Any other issue that becomes apparent after further review of the file.”

       The Appellate Court noted, “[t]he plaintiff filed a cross appeal in each case setting forth four alternative grounds to sustain the trial court’s decision. While these cross appeals are not properly before this court, we have not dismissed them, since our conclusions in the defendants’ appeals make it unnecessary to consider the cross appeals.” East Hartford v. East Hartford Municipal Employees Union, Inc., 10 Conn. App. 611, 612, 525 A.2d 112 (1987). In a footnote the Appellate Court explained, “[t]he proper procedure for the plaintiff, as appellee, was to file a preliminary statement of issues within fourteen days of the filing of the appeal. Practice Book § 4013 (a) (1) (formerly § 3012 [a]).” Id., 612 n.1. The Appellate Court also stated: “In view of our holding, it is unnecessary to consider the plaintiff’s alternate grounds to sustain the decision of the trial court.” Id., 618.

       The town has submitted these four alternative grounds pursuant to Practice Book § 4140:
      “1. Have the arbitrators exceeded their powers and violated the parties’ agreement by asserting jurisdiction over the dismissal of a probational employee where both the collective bargaining agreement and the Appellee Town’s personnel rules and merit system expressly provide that such a dismissal shall not be subject to the grievance procedure?
      “2. Have the arbitrators exceeded their powers and violated the parties’ agreement by framing the issue as a termination of employment, as opposed to the demotion and reinstatement of an employee back to her prior position, and thus imposing a higher standard of proof and higher level of damages than provided in the parties’ agreement?
      “3. Have the arbitrators exceeded their powers as a matter of law, in violation of Section 7-474 (g) of the Connecticut General Statutes and strong public policy when it assumed jurisdiction over an issue of conduct, grading and rating of merit examinations and appointments where such an area is statutorily precluded as a subject of collective bargaining?
      “4. Have the arbitrators and Board of Mediation and Arbitration denied fundamental due process of law and Section 52-418 (a) (2) of the Connecticut General Statutes by failing to empanel and maintain a fair and impartial panel, where one of the panel members was concurrently acting as an advocate against the appellee Town in another labor proceeding, and was concurrently advocating in said proceeding that the Town Personnel Director, who took part in the issue before him in the arbitration proceeding, was a liar?”

       “[General Statutes] Sec. 52-418. vacating award, (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.
      “(b) If an award is vacated and the time within which the award is required to be rendered has not expired, the court or judge may direct a rehearing by the arbitrators.”

       In Stratford v. Local 134, IFPTE, 201 Conn. 577, 583-86, 519 A.2d 1 (1986), this court did expand the grounds for review of a voluntary arbitration award to include the consideration of claimed violations of a provision of our state constitution and also of the public policy of this state. The arbitrators, however, had refused to determine these issues when raised during the arbitration proceeding, unlike the present case where the timeliness issue was decided by the arbitrators.

       The plaintiff has not claimed in this appeal and there is nothing in the record to suggest that this collective bargaining agreement is the product of compulsory arbitration. Our discussion here is limited to the scope of review in voluntary arbitration, and a somewhat different analysis might apply if compulsory arbitration were at issue. See Wilson v. Security Ins. Group, 199 Conn. 618, 626-30, 509 A.2d 467 (1986); Carofano v. Bridgeport, 196 Conn. 623, 636, 495 A.2d 1011 (1985).


author: Glass, J.

text:
    State of Connecticut v. Malcolm Lytell
    (13235)
    Peters, C. J., Healey, Shea, Glass and Covello, Js.

      Argued January 12
    decision released March 22, 1988

      John W. Watson, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Guy W. Wolf III, assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney, for the appellee (state).
   Glass, J.

The defendant, Malcolm Lytell, was charged with two counts of the crime of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), one count of the crime of larceny in the second degree in violation of General Statutes § 53a-123 (a) (2), and one count of the crime of using a motor vehicle without the owner’s permission in violation of General Statutes § 53a-119b (a) (1). He was tried by a jury and found guilty on all counts. On May 23, 1986, the trial court, Hadden, J., sentenced the defendant to a total effective sentence of imprisonment of twenty-one years. The defendant now appeals, raising four claims: (1) that he was deprived of a fair trial due to the introduction into evidence of his postarrest refusal to name his alibi witnesses; (2) that the trial court erred in its instruction to the jury on fingerprint evidence; (3) that the trial court erred in its instruction to the jury on proof beyond a reasonable doubt; and (4) that conviction and punishment for two counts of the crime of robbery in the first degree violated his due process and double jeopardy rights under the federal and state constitutions. We find no error.

The jury could reasonably have found that on November 7, 1985, at approximately 12:30 p.m., Anthony Guarino, the owner of the Congress Cafe (cafe) in New Haven, and his wife, Mary, were robbed by three black males. The Guarinos had driven to the cafe in Mary’s car which they had parked in front of the cafe door. Harry Dailey, the night bartender, was with the Guarinos when the three black males entered the cafe and announced that it was a “stickup.” One man was armed with a gun and one man was carrying a stick or tree branch. The man with the gun ordered Mr. Guarino and Dailey to lie down on the floor. Mrs. Guarino panicked and began throwing glasses at the men. The two men without guns pushed her to the floor and hit her with the stick.

The men then took approximately $1500 from Mr. Guarino’s pockets and a bank bag containing $6000 that they had ordered Mrs. Guarino to retrieve from a closet behind the bar. The men then took Mrs. Guarino’s car keys and drove away in her car. Approximately five minutes after the robbery, Mrs. Guarino’s car was found abandoned in a vacant lot a short distance from the cafe. A green ski mask worn by one of the men was found inside the car. Mrs. Guarino’s purse and car keys were missing. The car was “dusted” for fingerprints, and one that was identified as the defendant’s was found on the exterior of the driver’s window.

At the time of the robbery one of the state’s witnesses, Dennis Sims, lived two blocks away from the cafe. Sims and the defendant had known each other for approximately five years and had regular, personal contact. On the day of the robbery, while walking past the cafe, Sims had noticed the defendant and two other men across the street from the bar. Later Sims saw the men run across the street and enter the bar. Sims, knowing “what was going down,” retreated, and shortly thereafter saw the three men leave the bar and drive away in Mrs. Guarino’s car.

Later, Sims approached Detective Jerry Waller, who had been dispatched to the area of the cafe, and told Waller that he thought he might be wanted for a robbery he had not committed. He stated that if Waller would “see what’s happening in [his] case,” he might have some useful information. Waller found no warrant for Sims’ arrest and arranged to meet him around the corner. At that meeting Sims told Waller that the defendant was involved in the robbery. The next day Sims went to the police station and made a photographic identification of the defendant. Sims also identified the defendant at trial.

The defendant was arrested on November 13, 1985. After executing a written waiver of his Miranda rights; Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); the defendant made an oral statement to Detective Robert Coffey, in which he claimed to have been hosting or running a card game in Waterbury at the time of the robbery. When Coffey asked the defendant for the names and addresses of the persons in the card game to enable him to investigate the defendant’s alibi claim, the defendant refused to give such information. Coffey then told the defendant that his fingerprint had been found on Mrs. Guarino’s car, and the defendant replied that that was “impossible” because he had never been in or near the car.

I

The defendant’s first claim is that he was deprived of a fair trial by the introduction of his postarrest refusal to name his alibi witnesses. The defendant specifically relies on Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 48 L. Ed. 2d 91 (1976), for the proposition that a defendant’s silence after having been arrested and having received Miranda warnings may not be used to impeach his trial testimony. We hold that the principles of Doyle are inapplicable to the facts of this case, and that our recent decision in State v. Talton, 197 Conn. 280, 497 A.2d 35 (1985), is dispositive of this issue.

In Talton, the defendant was charged with first degree sexual assault, and after waiving his Miranda rights refused to answer a question regarding the name of the woman he claimed to have been with at the time of the assault. The state presented evidence of his refusal to answer the question at the trial. We stated: “The Doyle decision, however, is not applicable to the facts of this case. The crucial distinction is that, here, the defendant did not remain silent after he was arrested and advised of his rights. After being given Miranda warnings, the defendant clearly chose to forego his right to remain silent. Once an arrestee has waived his right to remain silent, the Doyle rationale is not operative because the arrestee has not remained silent and an explanatory statement assuredly is no longer ‘insolubly ambiguous.’ By speaking, the defendant has chosen unambiguously not to assert his right to remain silent. He knows that anything he says can and will be used against him and it is manifestly illogical to theorize that he might be choosing not to assert the right to remain silent as to part of his exculpatory story, while invoking that right as to other parts of his story. While a defendant may invoke his right to remain silent at any time, even after he has initially waived his right to remain silent, it does not necessarily follow that he may remain ‘selectively’ silent.” State v. Talton, supra, 295. Thus in Taitón, the defendant’s “expression of a disinclination to answer one question was not tantamount to any assertion of his fifth amendment right.” Id.

Similarly, the defendant’s actions in this case cannot be construed as an invocation of his fifth amendment right. As in Talton, the defendant waived his Miranda rights and voluntarily discussed the events of the day in question with Coffey. After the defendant had refused to provide the names and addresses of the alibi witnesses, the questioning continued. Specifically, Coffey stated that the defendant’s fingerprint had been found on Mrs. Guarino’s car. The defendant expressed his disbelief and then Coffey again asked the defendant to name his alibi witnesses. At this point the defendant requested an attorney and the interrogation was terminated. The first refusal to name the witnesses came before the defendant’s invocation of his fifth amendment rights. Thus, the Talton rationale applies and the defendant’s refusal to answer the question regarding the identity of his alibi witnesses was properly admitted as evidence at trial.

II

The defendant’s second claim is that the trial court erred in refusing to charge the jury as requested on fingerprint evidence. The defendant argues that when fingerprint evidence is presented in a trial, the charge to the jury must contain an instruction that “[u]nless it can be shown that the circumstances are such that the fingerprints could have been impressed only at the time the crime was perpetrated, the presence of the defendant’s fingerprints does not establish his connection with the crime charged.” State v. Mayell, 163 Conn. 419, 426, 311 A.2d 60 (1972); see also State v. Payne, 186 Conn. 179, 182, 440 A.2d 280 (1982). We squarely addressed this issue in our recent decision in State v. Santangelo, 205 Conn. 578, 599, 534 A.2d 1175 (1987), where we stated that “[sjuch an instruction is germane where the fingerprints of an accused constitute the only evidence, or the principal evidence to convict.”

In this case, the fingerprint evidence was not the only or principal evidence implicating the defendant. He was positively identified by a witness who had known him for a number of years. Further, the Guarinos’ descriptions of the height, build and beard of one of the robbers was consistent with the defendant’s appearance. Finally, the defendant knew that the Guarinos kept a large sum of money in the cafe to cash payroll checks. Thus, the trial court was under no obligation to give the requested fingerprint instruction because of the significant other evidence in this case.

III

The defendant next claims that the trial court erred in its charge on proof beyond a reasonable doubt. The trial court’s first definition of reasonable doubt was “[r]easonable doubt means this: It is a doubt for which a reasonable person can give a valid reason.” The defendant argues that this definition and the entire charge on reasonable doubt impermissibly lowered the state’s burden of proof. We are unpersuaded.

It is well settled that a jury instruction is to be examined in its entirety, and that the test to be applied is whether the charge as a whole presents the case to the jury so that no injustice will be done. State v. Derrico, 181 Conn. 151, 170, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980). Previously, we have upheld the “valid reason” definition of reasonable doubt when the charge in its entirety provides the jury with sufficient guidance as to the “beyond a reasonable doubt” standard of proof. Id. The trial court made a number of careful explanations of the reasonable doubt standard, many of which were identical to those used by the trial court and approved by this court in State v. Derrico, supra. Reviewing the instruction in its entirety, we find that it fairly presented the proof beyond a reasonable doubt standard so that no injustice was done.

IV

The defendant’s final claim is that conviction and punishment for two counts of the crime of robbery in the first degree violated his double jeopardy and due process rights under the federal and state constitutions. The defendant was charged and convicted for one count of robbery in the first degree perpetrated against Anthony Guarino, and for a second count of robbery in the first degree perpetrated against Mary Guarino. We find no error.

It is well settled that “[t]he proper double jeopardy inquiry when a defendant is convicted of multiple violations of the same statutory provision is whether the legislature intended to punish the individual acts separately or to punish only the course of action which they constitute. Albernaz v. United States, 450 U.S. 333, 337, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981); Whalen v. United States, 445 U.S. 684, 691, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980).” (Emphasis in original.) State v. Rawls, 198 Conn. 111, 121, 502 A.2d 374 (1985). As we noted in State v. Madera, 198 Conn. 92, 109, 503 A.2d 136 (1985), “the issue, though essentially constitutional, becomes one of statutory construction.” We have recently interpreted a number of criminal statutes to determine the same issue: whether the legislature intended to allow punishment for two separate violations of the same statutory provision. See, e.g., State v. Bunkley, 202 Conn. 629, 659-60, 572 A.2d 795 (1987) (manslaughter and assault); State v. Rawls, supra, 119-22 (narcotics possession); State v. Madera, supra, 108-10 (arson murder); State v. Couture, 194 Conn. 530, 565-66, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985) (felony murder). In these cases, we found that the pivotal question was whether the statutes defined crimes against the individual persons.

In State v. Couture, supra, 565, construing the felony murder statute, we stated that “[t]he statute refers to the death of ‘a person’ in the singular. A fundamental purpose of the criminal law is to protect individual citizens from the criminal conduct of another. People are neither fungible nor amorphous. Where crimes against persons are involved, a separate interest of society has been invaded for each violation. Therefore when two or more persons are the victims of a single episode there are as many offenses as there are victims. State v. Gunter, 132 Ariz. 64, 70, 643 P.2d 1034 (1982); State v. Irvin, 603 S.W.2d 121 (Tenn. 1980); Vigil v. State, 563 P.2d 1344, 1351 (Wyo. 1977). As the Wyoming Court so aptly stated in Vigil (p. 1351): ‘It must be noted that “any human being” is in the singular and there is no indication that the defendant can get a bargain rate if he assaults a group of human beings.’ ”

Similar to the felony murder statute in Couture, and the assault and manslaughter statutes in Bunkley, General Statutes § 53a-133 defines robbery as a crime against the person: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person . . . .” (Emphasis added.) The defendant argues that § 53a-133 is ambiguous, and that absent a clear legislative intent the ambiguity should be resolved in favor of lenity. We disagree, as we find that the plain language of § 53a-133 clearly mandates punishment for each and every robbery of each and every person, irrespective of whether the robbery was spatially linked with another robbery.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 53a-134 (a) (4) provides: “robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to'a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.”

       General Statutes § 53a-123 (a) (2) provides: “larceny in the second degree: class c felony, (a) A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and . . . (2) the value of the property or service exceeds five thousand dollars.”

       General Statutes § 53a-119b (a) (1) provides: “using motor vehicle OR VESSEL WITHOUT OWNER’S PERMISSION. INTERFERING OR TAMPERING WITH A MOTOR VEHICLE. FIRST OFFENSE: CLASS A MISDEMEANOR: SUBSEQUENT offense: class d felony, (a) A person is guilty of using a motor vehicle without the owner’s permission when: (1) He operates or uses, or causes to be operated or used, any motor vehicle unless he has the consent of the owner.”

       The trial court charged the jury on the proof beyond a reasonable doubt standard as follows: “The law says that the State must not only prove him guilty, but must prove him guilty beyond a reasonable doubt. It is not enough for the State to make out a case of even probable guilt, but the burden on the State, which never shifts, is to prove the accused guilty beyond a reasonable doubt. It is not required that the State prove the defendant guilty beyond all possible doubt.
      “Reasonable doubt means this: It is a doubt for which a reasonable person can give a valid reason. The burden of proving his guilt beyond a reasonable doubt requires the State to prove sufficient evidence to create in your minds a strong and abiding conviction of the guilt of the accused.
      “In other words, it is the law that the evidence must be so sufficient that it would leave no room in your minds for any reasonable hypothesis of the innocence of the accused.
      “A reasonable doubt is not a doubt raised by one who questions for the sake of raising a doubt. A reasonable doubt is not a surmise or speculation or conjecture or an imaginary doubt. A reasonable doubt is not a captious or a frivolous doubt nor a doubt which is raised by the ingenuity of counsel or by a juror and is unwarranted by the evidence, nor is it a doubt prompted by sympathy for the accused. A reasonable doubt is an honest doubt, a real doubt, a doubt which has its foundation in the evidence offered in the case or the lack of evidence.
      “Absolute certainty in the affairs of life is almost never attainable and the law does not require absolute certainty to authorize a conviction. What it does require is that the guilt be established as charged beyond a reasonable doubt, which is one founded upon the evidence, one which you as reasonable and prudent men and women would be willing to act upon the more weighty and important matters relating to your own affairs. It is proof wholly consistent with the defendant’s guilt and inconsistent with any other rational conclusion.”
      In State v. Derrico, 181 Conn. 151, 171 n.4, 434 A.2d 356 (1980), we approved the following jury charge: “A reasonable doubt is not such a doubt as may be raised by one questioning for the sake of raising a doubt. It is not a surmise or a guess or a conjecture. It is not hesitation springing from feelings of sympathy or pity for the accused or members of his family or other persons who might in any way be affected by your verdict. A reasonable doubt is one founded upon the evidence; one which grows out of the evidence or the lack of evidence in the case. It is one for which you can, in your own mind, conscientiously give a reason. A reasonable doubt is a square and honest doubt, grounded on reason; one which appeals to reason. If the facts you may find proven can reasonably be explained in any other way than that the accused is guilty, you must, of course, render your verdict in his favor.”

       General Statutes § 53a-54c provides in pertinent part: “A person is guilty of murder when, acting either alone or with one or more persons, he commits . . . robbery . . . and, in the course of and in furtherance of such crime ... he, or another participant . . . caused the death of a person other than one of the participants . . . .” (Emphasis added.)

       General Statutes § 53a-56 (a) (1) authorizes a finding of guilt for manslaughter for one who “causes the death of another person.” (Emphasis added.) State v. Bunkley, 202 Conn. 629, 660, 572 A.2d 795 (1987). General Statutes § 53a-61 (a) (2), the assault statute, “uses the language ‘causes serious physical injury to another person.’ ” (Emphasis in original.) Id.


author: Callahan, J.

text:
    Michael F. Brown v. Employer’s Reinsurance Corporation
    (13151)
    Healey, Shea, Callahan, Glass and Hull, Js.
    Argued December 11, 1987
    decision released March 29, 1988

      John F. McKenna, for the appellant (plaintiff).

      Duncan B. Hume, for the appellee (defendant).
   Callahan, J.

The plaintiff, Michael F. Brown, has filed this appeal from a judgment of the trial court, Susco, J., wherein the court found that the defendant’s assured, the K.N.D. Corporation (KND), had materially breached the terms of the libel insurance policy issued by the defendant, Employer’s Reinsurance Corporation (Employer’s), and consequently, that the plaintiff could not recover from the defendant under General Statutes § 38-175. The principal issue raised by the plaintiff is whether the trial court erred in finding that KND had materially breached its insurance contract with the defendant by failing to appear at trial and at the hearing in damages in the prior libel action brought by Brown against KND and Wilber Smith, a KND radio show host, who allegedly libeled the plaintiff on the air. Brown v. K.N.D. Corporation, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 80 0242122S (1980).

The relevant facts are not in dispute. In early 1980, Michael F. Brown brought a libel action against KND and its employee Wilber Smith for damages he sustained as a result of the alleged defamatory statements made during a radio broadcast by Smith. At the time END maintained a libel insurance policy that had been issued by the Employer’s Reinsurance Corporation. In the event an action was brought against END that involved the policy, END was required to notify Employer’s immediately and to forward copies of all process served upon END. The policy also required END to employ counsel for the defense of such a suit and to file proper pleadings within the time required by law. Under the terms of the policy, the defendant would reimburse END only after it had paid any loss incurred that was covered by the policy.

In accordance with these obligations, END retained an attorney who entered an appearance on behalf of END and began filing the appropriate responsive pleadings. During the course of this litigation, END was unable to pay its creditors and was subsequently dissolved as a corporation under state law on November 5, 1981. On September 16, 1983, END was defaulted by the trial court for its failure to appear at trial. At the close of the trial that proceeded against Smith, the trial court rendered a judgment in favor of the defendant Smith. On June 25, 1984, after a hearing in damages against END as a result of its default, at which END again failed to appear, the trial court rendered a final judgment against END in the amount of $95,000.

After unsuccessful attempts to execute upon the judgment, Brown initiated the present action against the defendant under the provisions of Connecticut’s “direct action” statute, General Statutes § 38-175. The defendant responded by asserting, inter alia, a special defense which alleged that END had materially breached the contract of insurance by failing to appear at trial and at the hearing in damages. Consequently, the defendant alleged that because END could not have maintained an action for reimbursement under the insurance contract, the plaintiff could not recover under § 38-175.

The trial court, Susco, J., agreed and held that END had in fact materially breached its contract by failing to appear at trial and defend the action, thus preventing a recovery by the plaintiff under § 38-175. The plaintiff on appeal argues that the trial court erred in (1) concluding that END had materially breached the contract of insurance, and (2) finding that END was not legally excused from performing its contract obligations under the principles of waiver, estoppel and laches. We find no error.

I

The principal claim raised by the plaintiff is that the trial court erred in concluding that END had materially breached the terms of the insurance policy by failing to appear at trial and at the hearing in damages, by failing to defend the action, and by failing to notify the defendant of its decision not to defend the action. The gravamen of the plaintiff’s claim is that the court’s conclusion is not supported by the evidence and is, in fact, contrary to the “undisputed or admitted” facts that appear on the record. We disagree.

General Statutes § 38-175 provides in pertinent part: “Each insurance company which issues a policy to any person, firm or corporation, insuring against loss or damage on account of . . . damage to the property of any person, for which loss or damage such person, firm or corporation is legally responsible, shall, whenever a loss occurs under such policy, become absolutely liable, and the payment of such loss shall not depend upon the satisfaction by the assured of a final judgment against him for loss, damage or death occasioned by such casualty.” In addition, the statute provides that when a final judgment is rendered against the assured for loss or damage covered by the policy and the judgment remains unsatisfied for more than thirty days, then “the judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment.” “[T]he legislature’s purpose in enacting the ‘direct action' statute was to remedy ‘[t]he unfairness to the assured of contracts of insurance’ with provisions that the insurer should be liable only in cases where the assured had actually paid a judgment obtained against him. Guerin v. Indemnity Ins. Co., 107 Conn. 649, 652, 142 A. 268 (1928). ‘The intention of the Act is to give the injured person the same rights under the policy as the assured . . . .' Id., 653.” Verdon v. Transamerica Ins. Co., 187 Conn. 363, 369, 446 A.2d 3 (1982). Thus, the statute protects those injured by judgment proof insureds, by subrogating the injured party or judgment creditor to the rights of the assured against the insurer. Bourget v. Government Employ ees Ins. Co., 287 F. Sup. 108, 110 (D. Conn. 1968), rev’d on other grounds, 456 F.2d 282 (2d Cir. 1972).

A party subrogated to the rights of an assured under § 38-175 obtains no different or greater rights against the insurer than the insured possesses and is equally subject to any defense the insurer may have against the assured under the policy. Arton v. Liberty Mutual Ins. Co., 163 Conn. 127, 139-40, 302 A.2d 284 (1972); Commercial Contractors Corporation v. American Ins. Co., 152 Conn. 31, 40, 202 A.2d 498 (1964); Connecticut Savings Bank v. First National Bank & Trust Co., 138 Conn 298, 305, 84 A.2d 267 (1951); Goergen v. Manufacturers Casualty Ins. Co., 117 Conn. 89, 93, 166 A. 757 (1933); Rochan v. Preferred Accident Ins. Co., 114 Conn. 313, 315-16, 158 A. 815 (1932). Consequently, in order for one to proceed under § 38-175, the insured must have had a viable statutory or contractual claim against the insurer; Cook v. Collins Chevrolet, Inc., 199 Conn. 245, 255, 506 A.2d 1035 (1986); and where the insurer has raised the special defense that the insured materially breached the provisions of the contract of insurance, the judgment creditor suing under § 38-175 bears the burden of proving that the insured complied with his or her obligations contained therein. O’Leary v. Lumbermen’s Mutual Casualty Co., 178 Conn. 32, 38, 420 A.2d 888 (1979); Arton v. Liberty Mutual Ins. Co., supra, 135; Manthey v. American Automobile Ins. Co., 127 Conn. 516, 519, 18 A.2d 397 (1941). It must also be noted that the insolvency of the insured is irrelevant as far as a plaintiffs rights of subrogation under § 38-175 are concerned. Bourget v. Government Employees Ins. Co., 313 F. Sup. 367, 369 (D. Conn. 1970).

Here the contract of insurance specifically imposed upon KND the duty to hire counsel and file the appropriate pleadings within the time required by law in the defense of any action brought against KND that involved the policy. In addition, the contract required that “[i]f the suit is brought to trial, the Assured shall conduct the defense thereof, but the Corporation, at its own election and expense, shall have the right to participate with the Assured in such defense.” The policy also imposed a continuing duty on KND to forward to the defendant immediately all copies of process served upon it. There is no dispute that neither KND nor its counsel appeared at trial in September, 1983, or at the hearing in damages conducted in June, 1984. In fact, the limited record below indicates that KND did very little, if anything, with regard to the defense of the suit after the corporation’s dissolution in November, 1981. It appears that KND’s decision to walk away from the defense of the suit was a business decision based upon the advice of their attorney that a judgment rendered against the corporation was worthless because the corporation had been dissolved and all of its assets had been sold. There can be no question that KND’s abandonment of the defense of the suit prior to trial was a material breach of its obligation under the insurance policy. Accordingly, we find that the trial court did not err in holding that KND materially breached the insurance policy by failing to defend the action at trial.

II

The plaintiff next claims that, in the event the court finds a material breach of the contract, the principles of waiver, estoppel and laches should apply to bar the defendant from relying upon KND’s breach in order to escape its liability -under the policy. In support of these claims the plaintiff argues that, not only did the defendant know approximately eighteen months before trial that KND had neither the intention nor the financial capability to appear and defend the case, the defendant also participated in and acquiesced in the joint decision not to appear at trial. The plaintiff attempts to rely on the record, without citing specific transcript references, to argue that it is clear that KND cooperated fully with the defendant and that both relied upon the advice of KND’s attorney in making the business decision not to defend the action at trial. We disagree.

At the outset, we note that absent estoppel, waiver or other excuse, the substantial or material breach of the cooperation provisions of the insurance policy by an insured puts an end to the insurer’s obligation. O’Leary v. Lumbermen’s Mutual Casualty Co., supra, 38; Arton v. Liberty Mutual Ins. Co., supra, 133. Waiver has been defined as the “‘intentional relinquishment or abandonment of a known right or privilege.’” D’Amico v. Manson, 193 Conn. 144, 147, 476 A.2d 543 (1984); A & B Auto Salvage, Inc. v. Zoning Board of Appeals, 189 Conn. 573, 579, 456 A.2d 1187 (1983); see also Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 562, 316 A.2d 394 (1972). While the defendant had the right under the policy to elect to participate in the defense of the action at trial, the record is totally devoid of any evidence that would indicate that the defendant knowingly and intentionally relinquished such right.

Contrary to the plaintiff’s unsupported allegation, there is not a scintilla of evidence in the record to indicate that the defendant ever received notice that the matter was going to trial in September, 1983, let alone that the defendant knew or should reasonably have known of KND’s intention not to appear at trial. While KND’s attorney notified Gail Ann Mussman at Employer’s that KND had gone out of business in a letter dated March 31, 1982, the letter also indicated that the case had been claimed for the jury list and was awaiting trial. The letter would lead one reasonably to believe that KND’s attorney was merely waiting for the case to be assigned for trial. Thereafter, the attorney made no indications regarding his or KND’s intention not to appear at trial when the case was assigned. In fact, KND’s attorney testified at trial that he did not recall ever giving notice to the defendant of the start of the trial and that there was nothing in his file to indicate that he did. He also testified that, after KND’s dissolution in November, 1981, “[t]here really wasn’t too much happening on the case” and that he was not sure whether he communicated with the defendant regarding the case after his letter of March 31, 1982, until July, 1984. Nor is there any evidence to indicate that he. notified the defendant of the entry of the default in September, 1983. The record reflects that the first notice to the defendant of KND’s default for failing to appear at trial and at the hearing in damages and the entry of the $95,000 judgment was a phone conversation KND’s attorney had with Jett Anderson of Employer’s on July 9, 1984, which is evidenced by a letter dated July 11, 1984, that he sent to Anderson. Accordingly, we cannot find that the trial court erred in holding that the defendant did not waive its contractual rights to appear and defend the action at trial.

The plaintiff also argues that the defendant should be estopped from asserting KND’s breach of the insurance policy because the defendant shared in and agreed with KND’s decision not to appear. The plaintiff, however, has pointed to no evidence in the record from which an inference can be drawn that the defendant even knew of KND’s decision, let alone participated in it. “[E]stoppel always requires ‘proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury. . . .’ Zoning Commission v. Lescynski, [188 Conn. 724, 731, 453 A.2d 1144 (1982)].” West Hartford v. Rechel, 190 Conn. 114, 121, 459 A.2d 515 (1983); see also John F. Epina Realty, Inc. v. Space Realty, Inc., 194 Conn. 71, 85, 480 A.2d 499 (1984). It is clear that KND’s decision was a business decision based upon the advice of its own attorney that KND was judgment proof because of its dissolution. There is no evidence in the record to justify the plaintiff’s claim that KND’s business decision was influenced by anything the defendant may have said or done.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] See. 38-175. liability of insurer under liability policy. Each insurance company which issues a policy to any person, firm or corporation, insuring against loss or damage on account of the bodily injury or death by accident of any person, or damage to the property of any person, for which loss or damage such person, firm or corporation is legally responsible, shall, whenever a loss occurs under such policy, become absolutely liable, and the payment of such loss shall not depend upon the satisfaction by the assured of a final judgment against him for loss, damage or death occasioned by such casualty. No such contract of insurance shall be cancelled or annulled by any agreement between the insurance company and the assured after the assured has become responsible for such loss or damage, and any such cancellation or annulment shall be void. Upon the recovery of a final judgment against any person, firm or corporation by any person, including administrators or executors, for loss or damage on account of bodily injury or death or damage to property, if the defendant in such action was insured against such loss or damage at the time when the right of action arose and if such judgment is not satisfied within thirty days after the date when it was rendered, such judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment.”

       The plaintiff appealed the judgment rendered in favor of the defendant Smith to the Appellate Court. The Appellate Court, on May 20,1986, set aside the judgment of the trial court and ordered the case remanded with direction to render judgment for the plaintiff on the issue of liability and to conduct a hearing in damages. Brown v. K.N.D. Corporation, 7 Conn. App. 418, 435, 509 A.2d 533 (1986). Thereafter, Smith appealed to this court where we reversed the judgment of the Appellate Court and ordered the case remanded to that court with direction to remand the case to the trial court to render judgment for the defendant Smith. Brown v. K.N.D. Corporation, 205 Conn. 8, 16, 529 A.2d 1292 (1987).

       The trial court also found for the defendant on counts two and three of the complaint that, respectively, set forth claims under Connecticut’s Unfair Trade Practices Act and Unfair Insurance Practices Act. The plaintiff has not raised these issues on appeal; therefore we need not address them.

       As part of its memorandum of decision dated January 29, 1987, the trial court ruled that damage or injury to one’s reputation resulting from alleged defamatory remarks was “damage to the property of any person” within the meaning of General Statutes § 38-175. The parties have not raised this issue on appeal.

       We decline to address the plaintiff’s claim of laches for he has failed to brief the issue. See State v. Milner, 206 Conn. 512, 542, 539 A.2d 80 (1988); State v. Hernandez, 204 Conn. 377, 382, 528 A.2d 794 (1987).

       The plaintiff also asserted these arguments in support of his first claim that KND did not materially breach the insurance contract. To avoid duplication, we address these claims together.

       We need not reach the issue of whether the analysis contained in our recent decision in Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 538 A.2d 219 (1988), would apply here or to all breaches of an insurance contract by an insured. In Aetna Casualty & Surety Co., this court held that an insured’s failure to give prompt notice to the insurer of an insurable claim as required by the insurance policy no longer results in an unconditional discharge of an insurer’s liability under its insurance contract. Id., 418. Rather, in recognition of the purposes of such notice provisions and the fact that insurance contracts are actually contracts of adhesion, this court held that a disproportionate forfeiture may result and could be avoided where the insured could demonstrate that the delayed notice resulted in no material prejudice to the insurer. Id., 416-20. The case at hand does not involve the breach of such a notice provision for it is undisputed that KND notified Employer’s immediately after Brown filed the initial suit. Thus, even assuming the prejudice analysis of Aetna Casualty & Surety Co. were to apply here, we would still find for Employer’s because the prejudice to it from KND’s failure to defend at trial is obvious. Employer’s interests were left unprotected at the trial and were thus subject to the present suit under General Statutes § 38-175.

       The plaintiff attempts to argue that KND’s attorney also may have represented Employer’s at some point in this litigation. There is nothing to support that claim, however, because the record indicates that the attorney entered an appearance only for KND and was not representing Employer’s in the initial action. Whether KND’s attorney had other dealings with the defendant on other unrelated matters is of no moment here.