author: PALMER, J.

text:
    MICHAEL CANNATA ET AL. v. DEPARTMENT OF ENVIRONMENTAL PROTECTION ET AL.
    (15371)
    Peters, C. J., and Callahan, Borden, Palmer and E. O’Connell, Js.
    Argued April 30
    officially released August 20, 1996

      Frank C. White, Jr., for the appellants-appellees (plaintiffs).

      Janet P. Brooks, assistant attorney general, with whom were Kimberly P. Massicotte, assistant attorney general, and, on the briefs, Richard Blumenthal, attorney general, and Joseph Rubin, assistant attorney general, for the appellees-appellants (named defendant et al).

      Michael Stem, for the appellee (defendant Connecticut Fund for the Environment).
   PALMER, J.

The plaintiffs, Deborah and Michael Cannata, appeal from the judgment of the trial court dismissing their administrative appeal from the decision of the named defendant, the department of environmental protection (department), in which the commissioner of environmental protection (commissioner) had rejected their application for authorization under General Statutes §§ 22a-342 and 22a-349 to clear-cut approximately fifty-five acres of their property in Cromwell. The plaintiffs sought permission from the commissioner to cut down the trees on the property, which is located within the stream channel encroachment lines along the Connecticut River, in order to make the land suitable for farming. Specifically, the plaintiffs requested a determination by the commissioner that their proposed land use was exempt from regulation by the department under § 22a-349 or, if not, that they were entitled to a permit under § 22a-342 authorizing them to clear-cut the fifty-five acres. The commissioner concluded that the exemption for agricultural or farming use established under § 22a-349 was not applicable to the plaintiffs’ proposed clear-cutting and also denied their permit application.

The plaintiffs appealed from the decision of the commissioner to the Superior Court pursuant to General Statutes § 4-183 (a). The defendants moved to dismiss the plaintiffs’ appeal on the ground that the trial court lacked jurisdiction to consider the plaintiffs’ claims because the commissioner’s decision was not an appeal-able final decision under General Statutes § 4-166 (3). The trial court rejected the defendants’ jurisdictional argument, but concluded that the plaintiffs’ claims were without merit and, accordingly, dismissed their appeal. The plaintiffs have appealed from the judgment of the trial court and the defendants have cross appealed from the denial of their motion to dismiss. We affirm the judgment of the trial court.

Some of the facts and procedural history relevant to this appeal are set forth in our opinion in Cannata v. Dept. of Environmental Protection, 215 Conn. 616, 577 A.2d 1017 (1990). “The plaintiffs own [approximately] two hundred acres of land in Cromwell bordering the Connecticut River. In 1988, the plaintiffs sought permits from the [commissioner], pursuant to § 22a-342, for permission to develop a portion of their land for a subdivision and golf course within the stream channel encroachment lines. On June 21, 1988, the commissioner granted the plaintiffs permission to develop a subdivision but denied with prejudice permission to construct a golf course. The construction of a golf course would have involved cutting the floodplain forest within the stream channel encroachment lines. The commissioner’s decision stated, inter alia, that, since 1976, floodplain forests have been recognized as critical habitats and that this particular floodplain forest is a resource of ‘special ecological significance, both in itself and through its function as a buffer to the adjacent Dead Man’s Swamp, another critical habitat.’

“On July 5, 1988, the plaintiffs notified the commissioner that they intended to cut trees within the stream channel encroachment lines in order to expand their agricultural crop land. On July 8, 1988, the commissioner issued, ex parte, a cease and desist order, directing the plaintiffs to stop cutting trees because they had failed to apply for a permit as provided in § 22a-342.

“On July 18 and 19,1988, a hearing was held, pursuant to General Statutes § 22a-7, before a hearing officer designated by the commissioner to determine whether the cease and desist order should be upheld. The Connecticut Fund for the Environment, Inc., intervened in support of the cease and desist order. On July 29,1988, the hearing officer issued a final decision upholding the order until the plaintiffs filed a permit application and [the department] had taken final action on it. From this decision, the plaintiffs appealed to the Superior Court pursuant to § 4-183.” Id., 618-21.

The trial court in that earlier case, sua sponte, dismissed the plaintiffs’ appeal for lack of subject matter jurisdiction, concluding that the plaintiffs had failed to exhaust their administrative remedies. Id., 620. The plaintiffs appealed and we affirmed the judgment of the trial court.

Thereafter, on August, 16,1990, the plaintiffs submitted to the commissioner the stream channel encroachment line permit application involved in this appeal. Attached to the completed application form was a three page cover letter addressed to Steven Derby, the supervising civil engineer of the inland waters resources division of the department, in which the plaintiffs sought to “clarify several points of fact to facilitate [the department’s] review of [the] application” and “to define exactly what the legal obligations are of the [department] regarding [the] application.” In particular, the plaintiffs indicated that they were seeking either a determination by the department that their intended land use was exempt from the permit process by virtue of § 22a-349 or, if the commissioner concluded otherwise, a permit under § 22a-342 allowing them to cut down and clear the trees on the fifty-five acre parcel so that they could use the land for farming.

Following a hearing on the plaintiffs’ application, the department hearing officer issued his proposed final decision in which he concluded that the plaintiffs’ proposed clear-cutting of the fifty-five acre parcel of property “would be an obstruction or encroachment . . . within the meaning of § 22a-342 [because] [t]he record clearly indicate[d] that that activity could create flood hazards such as [§§ 22a-342 through 22a-348] are meant to prevent.” The hearing officer, however, “recommended that the [Commissioner issue a [f]inal [decision . . . recognizing that the [applicants’] proposed clearing of trees and growing of crops constitute an agricultural use for which they do not need to obtain a § 22a-342 permit because of § 22a-349, and (b) setting forth appropriate prohibitions on any non-essential, non-agricultural aspects of that activity that might have adverse flooding effects.” Thereafter, the commissioner issued a final decision rejecting the hearing officer’s recommendation. After reviewing the legislative history of § 22a-349 and noting that exemptions to this statute are to be strictly construed, the commissioner concluded that § 22a-349 exempts only those farming or agricultural uses that were in existence at the time of the establishment of the stream channel encroachment lines. The commissioner further concluded, however, that “[e]ven assuming . . . that § 22a-349 exempts new as well as existing farming uses, the [plaintiffs’] proposal remains subject to the permit requirement . . . because, while the cultivation of crops constitutes farming, clear-cutting [fifty-five] acres of forest to develop farmable land does not.” The commissioner then concluded that the plaintiffs had failed to sustain their burden of establishing that they were entitled to a permit under § 22a-342 and, accordingly, denied the plaintiffs’ permit application.

The plaintiffs appealed from the decision of the commissioner to the trial court. The defendants moved to dismiss the appeal on the ground that the commissioner’s decision was not a final decision in a contested case and, therefore, was not appealable under § 4-183 (a). Specifically, the defendants claimed that the plaintiffs’ request for permission to clear-cut their property was merely a permit application under § 22a-342 and that, because the hearing held on the plaintiffs’ application was not statutorily required, the application did not give rise to a contested case. In response, the plaintiffs claimed that their request, although not so denoted, constituted a petition under § 4-176 (a) for a declaratory ruling by the commissioner that their proposed land use was exempt from the permit process and, moreover, that the commissioner had treated their request as such. The plaintiffs further claimed that their application for a permit under § 22a-342 was merely an adjunct to their request for a declaratory ruling and that they had filed the permit application in light of the possibility of an adverse ruling by the commissioner on the question of whether they were exempt from the permit process. The plaintiffs claim that because a declaratory ruling is an appealable “final decision” under §§ 4-183 (a) and 4-166 (3), the trial court had jurisdiction over their administrative appeal.

The trial court denied the defendants’ motion to dismiss, concluding that the plaintiffs had requested, and the commissioner had issued, a declaratory ruling determining the applicability of the § 22a-349 exemption to the plaintiffs’ proposed land use. In so holding, the trial court stated that “[although the plaintiff[s] did not state specifically that [the] August, 1990 letter to the [department was a petition for a declaratory ruling pursuant to § 4-176, it was in essence, and unmistakably, just such a petition.” The trial court noted, as evidence that the plaintiffs’ request constituted a petition for a declaratory ruling, that the commissioner, before acting upon the plaintiffs’ permit application, had first determined the applicability of the § 22a-349 exemption to the plaintiffs’ proposed clear-cutting and, furthermore, that the defendants had not previously challenged the form or legal sufficiency of the plaintiffs’ request for a determination by the commissioner under § 22a-342.

Upon consideration of the merits of the plaintiffs’ appeal, the trial court concluded that the record supported the commissioner’s determination that the plaintiffs’ proposed clear-cutting of their property was not an agricultural or farming use within the meaning of § 22a-349, and that the plaintiffs were, therefore, not exempt from the requirements of § 22a-342. In accordance with this conclusion, the trial court dismissed the plaintiffs’ administrative appeal. This appeal followed.

On appeal, the plaintiffs claim that the trial court improperly concluded that they were not entitled to an exemption from the § 22a-342 permit process. On the cross appeal, the defendants maintain that the trial court improperly failed to dismiss the plaintiffs’ administrative appeal for lack of subject matter jurisdiction. We agree with the trial court both that it had jurisdiction over the plaintiffs’ appeal and that the commissioner reasonably determined that the plaintiffs were not entitled to an exemption from the permit process. Accordingly, we affirm the judgment of the trial court.

I

Because the defendants mount a challenge to the subject matter jurisdiction of the court, we must first address that claim. As we have indicated, the defendants contend that the trial court was required to grant their motion to dismiss the plaintiffs’ appeal on the ground that the commissioner’s decision was not an “agency determination in a contested case” under § 4-166 (3) (A); see footnote 6; but, rather, the denial of a permit application. The plaintiffs do not challenge the defendants’ contention that their permit application did not give rise to a final decision under § 4-166 (3) (A). They maintain, instead, that they had also sought and obtained a declaratory ruling from the department on the applicability of the § 22a-349 exemption to their proposed land use and, consequently, that the commissioner’s decision is an appealable final decision under § 4-166 (3) (B) and § 4-183 (a). Our resolution of this issue, therefore, depends on the propriety of the trial court’s conclusion that the plaintiffs’ submission constituted a petition for a declaratory ruling by the department on the applicability of § 22a-349 to their proposal to clear-cut, and then to farm, the fifty-five acre parcel of property.

We conclude that the record supports the trial court’s determination that the plaintiffs’ request constituted a petition for a declaratory ruling as to the applicability of the § 22a-349 exemption and that the commissioner’s decision constituted such a ruling. In both their formal submission and the accompanying cover letter, the plaintiffs expressly requested a decision from the commissioner as to whether their proposed use of the fifty-five acres was exempt from regulation by the department under § 22a-349. Such a request falls squarely within the purview of § 4-176 (a). Moreover, a review of the commissioner’s written decision reveals that he considered the plaintiffs’ request as comprising two separate and distinct components: the commissioner characterized the plaintiffs’ request as “an application . . . for (1) a determination that a permit is not required under § 22a-342 to clear-cut and subsequently farm [fifty-five] acres of floodplain forest within the stream channel encroachment lines along the Connecticut River in Cromwell, or, in the alternative, (2) a permit under § 22a-342 for those activities.” Indeed, the majority of the commissioner’s decision is devoted to an analysis of the plaintiffs’ claim of entitlement to an exemption under § 22a-349 and his reasons for rejecting the plaintiffs’ claim.

The defendants contend that the record mandates a contrary conclusion. In particular, the defendants point out that neither the plaintiffs nor the commissioner complied strictly with the notice requirements that, at the time, related to declaratory rulings. See Regs., Conn. State Agencies § 22a-3a-l (c) (2). The defendants further note that, if the plaintiffs had regarded their request as one for a declaratory ruling under § 4-176, they likely would have initiated a declaratory judgment action in the Superior Court after the commissioner had failed to issue a ruling within 180 days of their filing, as was their right under General Statutes §§ 4-175 (a) (3) and 4-176 (i).

The fact that the plaintiffs and the commissioner failed to comply with the notice requirements regar ding declaratory rulings is not dispositive of the jurisdictional issue. Although the commissioner did not issue a notice of the hearing precisely as required by the terms of the regulation then in effect, he did cause notice to be published in the Hartford Courant and, in addition, notified several public officials of the hearing. Moreover, the record does not reveal, and the defendants do not claim, that any interested person was prejudiced by the parties’ failure to adhere strictly to the terms of the regulation.

The defendants’ argument regarding the plaintiffs’ failure to invoke § 4-175 (a) (3) is also unpersuasive. The defendants’ assertion to the contrary notwithstanding, it was perfectly reasonable for the plaintiffs, rather than seeking a judicial determination regarding the applicability of the § 22a-349 exemption immediately upon the expiration of the 180 day period following the date of their submission, to choose instead to await a decision by the commissioner. Thus, no inference regarding the plaintiffs’ legal conception of their submission to the commissioner can fairly be drawn from the plaintiffs’ failure to seek a declaratory judgment under § 4-175 (a) (3).

Because the record supports the trial court’s determination that the plaintiffs sought and obtained a declaratory ruling by the commissioner regarding the applicability of § 22a-349 to their proposed land use, and because a declaratory ruling is an appealable final decision under § 4-183 (a), the court had subject matter jurisdiction over the plaintiffs’ appeal. Accordingly, we now turn to the merits of the plaintiffs’ claim.

II

The plaintiffs contend that the trial court improperly dismissed their appeal on its merits. They maintain instead that the commissioner improperly concluded that the clear-cutting of the plaintiffs’ fifty-five acres of floodplain forest to make it suitable for farming is not an agricultural or farming use within the meaning of § 22a-349. We disagree.

Section 22a-349 provides that “[t]he provisions of sections 22a-342 to 22a-348, inclusive, shall not be deemed to restrict agricultural or farming uses of lands located within the stream channel encroachment lines including the building of fences, provided this section shall not apply to farm buildings and farm structures.” (Emphasis added.) The plaintiffs claim that, because they intend to farm the fifty-five acre parcel, the clear-cutting necessary to effectuate that purpose must also be considered a farming or agricultural use and, consequently, that such clear-cutting is exempt from regulation under § 22a-349. The defendants, on the other hand, claim that razing the trees on fifty-five acres of forest land to make the property suitable for farming does not fall within the ambit of the § 22a-349 exemption. We agree with the defendants.

“Our resolution of this issue is guided by the limited scope of judicial review afforded by the Uniform Administrative Procedure Act; General Statutes § 4-166 et seq.; to the determinations made by an administrative agency. [W]e must decide, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily or illegally, or abused its discretion. Ottochian v. Freedom of Information Commission, 221 Conn. 393, 397, 604 A.2d 351 (1992). Even as to questions of law, [t]he court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. . . . New Haven v. Freedom of Information Commission, 205 Conn. 767, 774, 535 A.2d 1297 (1988). Although the interpretation of statutes is ultimately a question of law ... it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement. . . . Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986); see also New Haven v. Freedom of Information Commission, supra, 773-74; Wilson v. Freedom of Information Commission, 181 Conn. 324, 342-43, 435 A.2d 353 (1980).” (Internal quotation marks omitted.) Connecticut Alcohol & Drug Abuse Commission v. Freedom of Information Commission, 233 Conn. 28, 39, 657 A.2d 630 (1995); Perkins v. Freedom of Information Commission, 228 Conn. 158, 164-65, 635 A.2d 783 (1993).

Furthermore, because our resolution of the plaintiffs’ claim requires the application of a statutory provision, namely, § 22a-349, to a specific factual scenario, we are also guided by well established tenets of statutory interpretation. “It is fundamental that statutory construction requires us to ascertain the intent of the legislature and to construe the statute in a manner that effectuates that intent.” (Internal quotation marks omitted.) Starr v. Commissioner of Environmental Protection, 236 Conn. 722, 737, 675 A.2d 430 (1996). “In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Fleming v. Garnett, 231 Conn. 77, 92, 646 A.2d 1308 (1994); State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994). Furthermore, in construing this statute, we are mindful that exemptions to statutes are to be strictly construed. Conservation Commission v. Price, 193 Conn. 414, 424, 479 A.2d 187 (1984); Aaron v. Conservation Commission, 183 Conn. 532, 549, 441 A.2d 30 (1979). Finally, common sense must be used in statutory interpretation, and “courts will assume that the legislature intended to accomplish a reasonable and rational result.” (Internal quotation marks omitted.) Elliot v. Sears, Roebuck & Co., 229 Conn. 500, 515, 642 A.2d 709 (1994); State v. Hinton, 227 Conn. 301, 320, 630 A.2d 593 (1993).

Applying these principles, we are persuaded, as was the trial court, that the commissioner reasonably concluded that the clear-cutting of the plaintiffs’ fifty-five acres of floodplain forest in order to develop farmable land is not the type of land use that the legislature contemplated to be eligible for an exemption under § 22a-349. In reaching this conclusion, we look for guidance to General Statutes § 1-1 (q), which defines the words “agriculture” and “farming” to “include cultivation of the soil, dairying, forestry, raising or harvesting any agricultural or horticultural commodity . . . the operation, management, conservation, improvement or maintenance of a farm ... or salvaging timber or cleared land of brush or other debris left by a storm, as an incident to such farming operations . . . the production or harvesting of . . . any agricultural commodity, including lumber, as an incident to ordinary farming operations . . . .” We agree with the commissioner that the large-scale clear-cutting of forest land, undertaken solely to prepare the land for farming and otherwise unrelated to any agricultural endeavor, including forestry, is not of the same kind or character as the activities enumerated in § 1-1 (q). See Paige v. Town Plan & Zoning Commission, 235 Conn. 448, 457, 668 A.2d 340 (1995). As the commissioner concluded in rejecting the plaintiffs’ claim under § 22a-349, “[t]he clear-cutting proposed [by the plaintiffs] is not ‘forestry,’ which, according to Webster’s Seventh New Collegiate Dictionary, is the ‘science of developing, caring for, or cultivating forests’ or the ‘management of growing timber.’ Nor is the clear-cutting a salvaging operation incidental to a farming operation. Nor does it involve harvesting or producing a tree-related agricultural commodity in the course of a farming operation. Indeed, the [plaintiffs] view the floodplain forest on their property not as an agricultural commodity but as an obstacle to the production of agricultural commodities — an obstacle the [plaintiffs] seek to eliminate in order to allow them to commence the production of agricultural commodities, namely, hay and vegetables.” (Emphasis in original.)

Furthermore, in light of the magnitude of the clear-cutting contemplated by the plaintiffs, it is apparent that their proposal, if effectuated, would drastically and permanently change the topography of their fifty-five acres of floodplain forest. While readying land to make it suitable for farming may, in some circumstances, constitute a farming or agricultural use exempt from regulation under § 22a-349, a preparatory activity that changes the essential nature and character of the property does not.

In addition, the interpretation of § 22a-349 urged by the plaintiffs would, in effect, allow a property owner to circumvent the § 22a-342 permit process, without regard to ecological considerations, any time a landowner expressed an intention to convert his or her property to a farming or agricultural use. “[T]he intent of the legislature is to be found not in an isolated phrase or sentence but, rather, from the statutory scheme as a whole.” State v. Breton, 235 Conn. 206, 226, 663 A.2d 1026 (1995); see also Fleming v. Garnett, supra, 231 Conn. 90 (“[i]n determining the meaning of a statute, [it] must be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation [internal quotation marks omitted]”). The statutory construction espoused by the plaintiffs would be inconsistent with the public policy, clearly enunciated in § 22a-342, against unreasonable encroachments on our floodplains and inland waterways.

Finally, a review of the relevant legislative history supports our conclusion that the commissioner’s decision was neither arbitrary nor unreasonable. For example, in his remarks to the legislature concerning the scope of the exemption, Representative Rufus Allyn stated that “[t]he establishment of stream channel encroachment lines in the Connecticut streams have left farmers who own farms or such land in a position of uncertainty regarding the future ability to use such land for its full farming potential. No assurances have ever been provided that they may continue to carry on normal farming activities without future restrictions. This Bill allows them to build fences and continue other farming activities on such land . . . .” (Emphasis added.) 18 H.R. Proc., Pt. 4, 1975 Sess., pp. 1914-15. This statement of legislative purpose is inconsistent with the plaintiffs’ claim that the clear-cutting of fifty-five acres of floodplain forest to render it suitable for farming activities is itself an exempt farming or agricultural use under § 22a-349.

The judgment is affirmed.

In this opinion the other justices concurred.

       The attorney general of the state of Connecticut, the Connecticut Fund for the Environment, the Cromwell Fish and Game Chib, the Connecticut River Watershed Council, Inc., and the Mattabeseck Audubon Society intervened in the administrative proceedings pursuant to General Statutes § 22a-19, and also are defendants in this case. Hereinafter, references to the defendants are to the department of environmental protection and the attorney general, both of whom filed cross appeals.

       General Statutes § 22a-342 provides: “The commissioner shall establish, along any tidal or inland waterway or flood-prone area considered for stream clearance, channel improvement or any form of flood control or flood alleviation measure, lines beyond which, in the direction of the waterway or flood-prone area, no obstruction or encroachment shall be placed by any person, firm or corporation, public or private, unless authorized by said commissioner. The commissioner shall issue or deny permits upon applications for establishing such encroachments based upon his findings of the effect of such proposed encroachments upon the flood-carrying and water storage capacity of the waterways and flood plains, flood heights, hazards to life and property, and the protection and preservation of the natural resources and ecosystems of the state, including but not limited to ground and surface water, animal, plant and aquatic life, nutrient exchange, and energy flow, with due consideration given to the results of similar encroachments constructed along the reach of waterway. Each application for a permit shall be accompanied by a fee as follows: (1) No change in grades and no construction of above-ground structures, two hundred fifty dollars; (2) a change in grade and no construction of above-ground structures, five hundred dollars; and (3) a change in grade and above-ground structures or buildings, two thousand five hundred dollars. The commissioner may adopt regulations, in accordance with the provisions of chapter 54, to prescribe the amount of the fees required pursuant to this section. Upon the adoption of such regulations, the fees required by this section shall be as prescribed in such regulations.”
      General Statutes § 22a-349 provides: “The provisions of sections 22a-342 to 22a-348, inclusive, shall not be deemed to restrict agricultural or farming uses of lands located within the stream channel encroachment lines including the building of fences, provided this section shall not apply to farm buildings and farm structures.”

       Clear-cutting is the removal of all timber from an area.

       We have previously entertained an appeal by the plaintiffs, following a decision by the department prohibiting them from clear-cutting their Cromwell property. In Cannata v. Dept. of Environmental Protection, 215 Conn. 616, 577 A.2d 1017 (1990), we affirmed the judgment of the trial court dismissing the plaintiffs’ administrative appeal from an adverse ruling by the department, on the ground that they had failed to exhaust their administrative remedies.

       General Statutes § 4-183 (a) provides: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal.”

       General Statutes § 4-166 (3) provides: “ ‘Final decision’ means (A) the agency determination in a contested case, (B) a declaratory ruling issued by an agency pursuant to section 4-176, or (C) an agency decision made after reconsideration. The term does not include a preliminary or intermediate ruling or order of an agency, or a ruling of an agency granting or denying a petition for reconsideration.”

       The parlies appealed to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       General Statutes § 22a-7 provides: “(a) The commissioner, whenever he finds after investigation that any person is causing, engaging in or maintaining, or is about to cause, engage in or maintain, any condition or activity which, in his judgment, will result in or is likely to result in imminent and substantial damage to the environment, or to public health within the jurisdiction of the commissioner under the provisions of chapters 440, 442, 445,446a, 446c, 446d and 446k, or whenever he finds after investigation that there is a violation of the terms and conditions of a permit issued by him that is in his judgment substantial and continuous and it appears prejudicial to the interests of the people of the state to delay action until an opportunity for a hearing can be provided, or whenever he finds after investigation that any person is conducting, has conducted, or is about to conduct an activity which will result in or is likely to result in imminent and substantial damage to the environment, or to public health within the jurisdiction of the commissioner under the provisions of chapters 440, 442, 445, 446a, 446c, 446d and 4461c for which a license, as defined in section 4-166, is required under the provisions of chapter 440, 442, 445, 446a, 446c, 446d or 446k without obtaining such license, may, without prior hearing, issue a cease and desist order in writing to such person to discontinue, abate or alleviate such condition or activity.”

         In Cannata v. Dept. of Environmental Protection, supra, 215 Conn. 621, the plaintiffs claimed that “the trial court erred in dismissing their appeal for failure to exhaust an administrative remedy because the applicability of the remedy, i.e., filing an application for a permit, raises a jurisdictional issue, thereby creating an exception to the exhaustion requirement.” We disagreed, concluding that “[wjhether the plaintiffs’ proposed activity within the stream channel encroachment lines is a placement of an ‘obstruction or encroachment’ requiring them to obtain a permit pursuant to § 22a-342 and whether the plaintiffs’ proposed use of their land is an ‘agricultural or farming’ use within § 22a-349 are factual determinations best left to the commissioner.” Id., 627. We further observed that the plaintiffs had two administrative avenues available to them by which to obtain this determination: they could apply for a permit under § 22a-342 to cut down and remove trees from their property located within the stream channel encroachment lines, or they could petition the commissioner under General Statutes § 4-176 for a declaratory ruling on the applicability of §§ 22a-342 and 22a-349 to the proposed use of their land within the stream channel encroachment lines. Id., 629-30 n.9. Because the plaintiffs had not pursued either course of action, we concluded that they had failed to exhaust their administrative remedies and, therefore, we affirmed the judgment of the trial court dismissing their appeal.

       Both the letter and the application were signed by Michael Cannata only, but purported to be filed on behalf of both plaintiffs.

       The commissioner adopted the hearing officer’s finding that the plaintiffs’ proposed dear-cutting would constitute an obstruction or encroachment within the meaning of § 22a-342.

       In denying the plaintiffs’ permit application, the commissioner stated in pert inent part as follows: “An applicant bears the burden of demonstrating that his proposal meets all statutory criteria for the granting of the application. . . . Apparently putting all their eggs in the § 22a-349 exemption basket, the [applicants offered no evidence whatever with respect to any of the factors for decision [set forth under] § 22a-342. And the evidence adduced by the [sjtaff and intervenors quite clearly showed that clear-cutting this parcel of floodplain forest would have deleterious hydraulic effect and would destroy an ecosystem of surpassing natural value, one that, is among a handful of remaining examples of its kind in Connecticut,. On this record, therefore, the [applicants did not discharge their burden of proving that the application should be granted, and it is accordingly denied.”

       “Contested case” is defined as “a proceeding ... in which legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for [a] hearing or in which a hearing is in fact held, but does not include proceedings on a petition for a declaratory ruling under section 4-176 . . . .” General Statutes § 4-166 (2). Thus, a contested case is a case in which an “agency is required to provide an opportunity for a hearing to determine a party’s legal rights or privileges.” (Emphasis added.) Summit Hydropower Partnership v. Commissioner of Environmental Protection, 226 Conn. 792, 811, 629 A.2d 367 (1993).

       General Statutes § 4-176 provides in relevant part: “Declaratory rulings. ... (a) Any person may petition an agency, or an agency may on its own motion initiate a proceeding, for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency. . . .
      “(e) Within sixty days after receipt of a petition for a declaratory ruling, an agency in writing shall: (1) Issue a ruling declaring the validity of a regulation or the applicability of the provision of the general statutes, the regulation, or the final decision in question to the specified circumstances, (2) order the matter set for specified proceedings, (3) agree to issue a declaratory ruling by a specified date, (4) decide not to issue a declaratory ruling and initiate regulation-making proceedings, under section 4-168, on the subject, or (5) decide not to issue a declaratory ruling, stating the reasons for its action. . . .”

       The plaintiffs did not challenge the commissioner’s denial of their permit application under § 22a-342, and they have not done so on appeal to this court.

       The plaintiffs also claim that: (1) the commissioner improperly concluded that the § 22a-349 exemption applied only to agricultural or farming uses in existence at the time of the establishment of the stream channel encroachment lines; (2) the commissioner’s decision constituted invalid rule-making; and (3) the commissioner’s decision violated the plaintiffs’ equal protection rights guaranteed by the federal and state constitutions. Because our decision rests upon the determination that clear-cutting fifty-five acres of floodplain forest located within the stream channel encroachment lines does not constitute an agricultural or farming use under § 22a-349, we do not decide whether the exemption created thereunder applies only to property in agricultural or farming use at the time of the establishment of the stream channel encroachment lines. We also do not reach the plaintiffs’ equal protection claim because that claim rests upon the assumption that the exemption applies only to those farming activities that were in existence at the time the stream channel encroachment lines were established.
      Finally, the plaintiffs claim that the “conclusion by the commissioner that §§ 22a-342 through 22a-348 can be used to restrict agricultural and farming uses of land despite the language of § 22a-349 amounts to [the improper promulgation of] a new regulation by the commissioner.” We reject this claim for the same reasons that we reject the plaintiffs’ claim that the commissioner’s application of § 22a-349 was improper. See part II of this opinion.

       “Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. ... A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. . . . [0]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case. . . .” (Citation omitted.) Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996).

       The defendants acknowledge that the trial court’s resolution of this essentially fact-based issue is entitled to deference and may not be disturbed unless it is clearly erroneous.

       We note that under § 4-176 (b), each agency is directed to adopt regulations providing for “the form and content of petitions for declaratory rulings.” The defendants have not claimed that the form or content of the plaintiffs’ submission contravened any such requirement promulgated by the department.

       At the time of the plaintiffs’ submission, § 22a-3a-l (c) (2) of the Regulations of Connecticut State Agencies provided: “Within thirty (30) days following receipt of a petition, the commissioner shall determine whether to grant or deny it, and shall notify the petitioner. If the petition is granted, the commissioner shall publish in the Connecticut Law Journal a notice granting the petition and the right of the public to comment thereon, and the petitioner shall send notice by certified mail of the substance of the petition and the right to comment thereon to all persons known by the petitioner to have an interest in the declaratory ruling. If the number of such persons renders this method of notice unduly burdensome, the petitioner may instead publish such notice in a newspaper of general circulation in each area wherein those persons reside. He or she shall then submit to the commissioner a list of the persons to whom or newspapers to which notice was sent, the date of mailing or publication and, if applicable, the reasons why newspaper notice was appropriate. The commissioner shall accept public comment on the petition for thirty (30) days following publication or mailing of such notice, whichever is later. Following such thirty day period, the commissioner shall make a declaratory ruling and send it to all persons commenting on the petition or identified by the petitioner as having a direct interest in the ruling.” This regulation has subsequently been repealed.
      The plaintiffs apparently failed to send notice of their request to interested parties, and the commissioner did not publish notice of the hearing on the plaintiffs’ application in the Connecticut Law Journal. The commissioner, however, did publish notice of the hearing in the Hartford Courant.

       General Statutes § 4-175 (a) provides: “If a provision of the general statutes, a regulation or a final decision, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff and if an agency (1) does not take an action required by subdivision (1), (2) or (3) of subsection (e) of section 4-176, within sixty days of the filing of a petition for a declaratory ruling, (2) decides not to issue a declaratory ruling under subdivision (4) or (5) of subsection (e) of said section 4-176, or (3) is deemed to have decided not 1o issue a declaratory ruling under subsection (i) of said section 4-176, the petitioner may seek in the superior court a declaratory judgment as to the validity of the regulation in question or the applicability of the provision of the general statutes, the regulation or the final decision in question to specified circumstances. The agency shall be made a party to the action.”
      General Statutes §4-176 (i) provides: “If an agency does not issue a declaratory ruling within one hundred eighty days after the filing of a petition therefor, or within such longer period as may be agreed by the parties, the agency shall be deemed to have decided not to issue such ruling.”

       The defendants do not claim that the parties’ failure strictly to comply with the notice requirements deprived the commissioner of jurisdiction to render a declaratory ruling but, rather, that the lack of compliance with the notice provisions indicates that neither the plaintiffs nor the commissioner treated the plaintiffs’ request as a petition for a declaratory ruling.

       The commissioner sent notice of the plaintiffs’ request and the hearing scheduled thereon to Senator Edward Munster, Representative James O’Rourke, and the first selectman of Cromwell. See General Statutes § 22a-6(d).

       The defendants also claim that the issuance of a § 22a-342 permit was the only way for the plaintiffs to have obtained the release of the outstanding cease and desist order that had been issued by the department and, furthermore, that because the plaintiffs must have been aware that this avenue was their only such option, the trial court was required to conclude that the plaintiffs understood their submission to be a permit application and not a petition for a declaratory ruling. This argument is without merit. We see no reason why the department would not have lifted the cease and desist order had there been a determination by the commissioner that the plaintiffs’ proposed activity was exempt from the permit process. Furthermore, the trial court was not required to draw any inference regarding the plaintiffs’ state of mind solely from the fact that the cease and desist order remained in effect at the time the plaintiffs filed their submission with the department.

       As we stated in Cannata v. Dept. of Environmental Protection, supra, 215 Conn. 627, “[w]hether the plaintiffs’ proposed activity within the stream channel encroachment lines is a placement of an ‘obstruction or encroachment’ requiring them to obtain a permit pursuant to § 22a-342 and whether the plaintiffs’ proposed use of their land is an ‘agricultural or farming’ use within § 22a-349 are factual determinations best left to the commissioner. This is precisely the type of situation that calls for agency expertise. Relegating these determinations to the commissioner in the first instance will provide a complete record containing the commissioner’s interpretation of the relevant statutory provisions for judicial review.”

       The commissioner noted that “[a] commodity is ‘(1) (a): convenience, advantage, (b): something useful or valuable, (2): an economic good as (a): a product of agricultural or mining, (b): an article of commerce.’ Webster’s Seventh New Collegiate Dictionary.”

       The commissioner did not determine, and we do not suggest, that the cutting of trees on property located within stream channel encroachment lines can never constitute a farming or agricultural use. We conclude, rather, that the commissioner reasonably determined that the nature and extent of the clear-cutting proposed by the plaintiffs places that activity outside the purview of the exemption contained in § 22a-349.


source: Caselaw Access Project

license: Public Domain

text:
    CHARLES BLACK, ADMINISTRATOR (ESTATE OF DEWITT C. BLACK) v. GOODWIN, LOOMIS AND BRITTON, INC., ET AL.
    (15361)
    Peters, C. J., and Borden, Norcott and Palmer, Js.

      Argued April 23
    officially released August 20, 1996

      Joel J. Rottner, with whom, on the brief, were Joseph F. Shelley, Jr., Brad N. Mondschein and Edward W. Gasser, for the appellant-appellee (defendant Maryland Casualty Company).

      Thomas A. Cloutier, with whom was Conrad Ost Seifert, for the appellee-appellant (plaintiff).

      Douglas W. Hammond and Joram Hirsch filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.

       Subsequent to oral argument in this appeal, Justice Berdon, originally a member of the panel of this court assigned to hear the case, disqualified himself. The parties have agreed to have the appeal decided by the remaining four justices.

   PALMER, J.

This appeal requires us to determine the enforceability of a stipulated judgment under which an insured has assigned to an injured party any claims that the insured has against its insurer in exchange for the injured party’s agreement to seek satisfaction of the judgment solely against the insurer. The plaintiff, Charles Black, the administrator of the estate of DeWitt C. Black (decedent), initiated a wrongful death action against White, Wheeler and Company (White). White’s insurance carrier, the defendant Maryland Casualty Company (Maryland Casualty), denied coverage and refused to defend White. The plaintiff and White thereupon stipulated to a judgment under which White assigned to the plaintiff any claims that it had against Maryland Casualty in return for the plaintiffs promise to seek satisfaction of the judgment against Maryland Casualty and not against White. The plaintiff then instituted this action against Maryland Casualty. At the conclusion of the trial, a jury returned a verdict in favor of the plaintiff and the trial court rendered judgment accordingly. Maryland Casualty appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The facts relevant to this appeal are undisputed. On June 26, 1989, White, a framing contractor, obtained an insurance binder from Goodwin, Loomis and Britton, Inc. (Goodwin), for a general commercial liability policy with coverage in the amount of $500,000. The insurance binder listed Maryland Casualty as the insurance carrier retained to provide liability coverage for White.

On August 14, 1989, the decedent was employed as a house framer for White. While working on the second floor of a partially completed dwelling, the decedent slipped and fell through an uncovered chimney shaft, striking his head on a concrete floor eighteen feet below. The decedent died the next day from the injuries that he had sustained as a result of the fall.

In December, 1989, the plaintiff filed a wrongful death action against White and the owners of the home, Barbara and George Backman. In accordance with the insurance binder, Goodwin made a demand on Maryland Casualty to defend White in the wrongful death action. Maryland Casualty, however, denied coverage and, further, refused to defend the suit.

Thereafter, on June 10, 1991, the plaintiff and White, through its president, William Wall, entered into a stipulation in settlement of the plaintiffs wrongful death action against White. Under the terms of the stipulation, White stipulated to liability in the plaintiffs action in the amount of $500,000, plus interest, for damages resulting from the decedent’s death. In addition, White assigned to the plaintiff any and all rights that it had against Maryland Casualty resulting from the denial of coverage and refusal to defend it in the plaintiffs action. In return for the assignment of rights from White, the plaintiff agreed to seek satisfaction of the judgment solely against Maryland Casualty and, accordingly, the plaintiff released White “from further liability regarding the payment and satisfaction of this judgment.” The trial court rendered judgment in accordance with the parties’ stipulation.

Thereafter, on June 19, 1991, the plaintiff brought this action seeking satisfaction of the stipulated judgment, plus interest and other damages. The plaintiffs amended five count complaint contained three common law claims, breach of contract, negligence and bad faith, and two statutory claims, one for violation of General Statutes § 38a-321 and a second for violations of the Connecticut Unfair Trade Practices Act (CUTPA); General Statutes § 42-110a et seq.; and the Connecticut Unfair Insurance Practices Act (CUIPA). General Statutes § 38a-815 et seq. Each of these claims stemmed from Maryland Casualty’s denial of insurance coverage to White and its failure to defend White in connection with the plaintiffs wrongful death action. Maryland Casualty, in response, claimed as one of its special defenses that the plaintiffs agreement not to seek satisfaction of the stipulated judgment against White created “no enforceable rights [in the plaintiff] to the assignment or judgment” and that “the assignment and judgment are void and against public policy as they were obtained by collusion” between the plaintiff and White. On August 30, 1991, the plaintiff filed an offer of judgment pursuant to General Statutes § 52-192a in the amount of $500,000.

After a trial, the jury returned a verdict in favor of the plaintiff on the remaining counts; see footnote 8; and awarded the plaintiff $500,000 in damages, plus interest under General Statutes § 37-3a. Thereafter, the trial court denied Maryland Casualty’s motions to set aside the verdict and for a remittitur, and rendered judgment in favor of the plaintiff in the amount of $1,009,833.40. This amount consisted of the $500,000 in damages that had been stipulated to by the plaintiff and White, interest under § 37-3a in the amount of $191,666.70, and interest under § 52-192a in the amount of $318,166.70 pursuant to the plaintiffs $500,000 offer of judgment.

On appeal, Maryland Casualty claims that: (1) the stipulated judgment is contrary to public policy and, therefore, void as a matter of law; (2) the trial court improperly denied its motion to set aside the verdict because the plaintiff failed to establish the reasonableness of the stipulated judgment and, further, that the trial court improperly prevented Maryland Casualty from presenting evidence that the stipulated judgment was unreasonable; (3) the trial court improperly instructed the jury that Maryland Casualty was required to prove collusion between White and the plaintiff by clear and convincing evidence; (4) the trial court’s award under § 52-192a violated Maryland Casualty’s constitutional rights to a jury trial and to due process of law; and (5) the trial court improperly denied Maryland Casualty’s request for a remittitur in light of the sums already paid to the plaintiff by Goodwin and by Barbara and George Backman. We are not persuaded by any of these claims and, therefore, affirm the judgment of the trial court.

I

Maryland Casualty maintains that a stipulated judgment is contrary to public policy, and hence unenforceable, when, as here, the judgment contains a provision under which an insured assigns to an injured party all rights that the insured has against its insurer in exchange for the injured party’s agreement that it will seek to satisfy the judgment against only the insurer. We disagree.

It is well settled that an insurer who maintains that a claim is not covered under its insurance policy can “either refuse to defend or it [can] defend under a reservation of its right to contest coverage under the various avenues which would subsequently be open to it for that purpose.” Missionaries of the Company of Mary, Inc. v. Aetna Casualty & Surety Co., 155 Conn. 104, 113, 230 A.2d 21 (1967) (Missionaries). An insurer who chooses not to provide its insured with a defense and who is subsequently found to have breached its duty to do so must bear the consequences of its decision, including the payment of any reasonable settlement agreed to by the plaintiff and the insured. Alderman v. Hanover Ins. Group., 169 Conn. 603, 611, 363 A.2d 1102 (1975); Missionaries, supra, 114. Moreover, an insurer, “after breaking the contract by its unqualified refusal to defend, should not thereafter be permitted to seek the protection of that contract in avoidance of its indemnity provisions. Nor should [the insurer] be permitted, by its breach of the contract, to cast upon the [insured] the difficult burden of proving a causal relation between the [insurer]’s breach of the duty to defend and the results which are claimed to have flowed from it.” Missionaries, supra, 114.

In both Missionaries and Alderman, the action against the insurance carrier alleging wrongful failure to defend and breach of the insurance contract had been brought by the insured. The present case requires us to decide whether, in connection with a stipulated settlement between an injured party and an insured, the insured may assign to the injured party all rights that it may have against its insurer in exchange for the injured party’s agreement to seek satisfaction of the judgment solely under the assignment. Maryland Casualty argues that to enforce such a stipulated judgment would promote fraud or collusion between the injured party and the insured and, therefore, that we should adopt a per se rule rejecting all such settlement agreements as against public policy.

The weight of authority is to the contrary. The “majority rule is based on the rationale that when an insurer has refused to defend its insured, it is in no position to argue that the steps the insured took to protect himself should inure to the insurer’s benefit.” Greer v. Northwestern National Ins. Co., 109 Wash. 2d 191, 204, 743 P.2d 1244 (1987); see also Red Giant Oil Co. v. Lawlor, 528 N.W.2d 524, 534 (Iowa 1995); Miller v. Shugart, 316 N.W.2d 729 (Minn. 1982); Metcalf v. Hartford Accident & Indemnity Co., 176 Neb. 468, 126 N.W.2d 471 (1964); Griggs v. Bertram, 88 N.J. 347, 443 A.2d 163 (1982). Under the majority view, when an insurer breaches its contractual duty to defend and, as a result, improperly leaves its insured to fend for itself, the insurer will not be heard to complain when the insured enters into a settlement agreement “so long as the insured acts in good faith, and without fraud.” 7C J. & J. Appleman, Insurance Law and Practice (1979) § 4690, p. 229. Furthermore, the settlement must be reasonable. Alderman v. Hanover Ins. Group., supra, 169 Conn. 611. Thus, the insured “can make his own settlement, consent to the entry of judgment with whatever stipulations he can make that are favorable to his interests, such as that the plaintiff will not levy on specified property of the insured, or simply assign certain rights to the plaintiff.” 7C J. & J. Appleman, supra, § 4690, pp. 229-31.

We are persuaded that the majority rule is sound. The principle urged by Maryland Casualty “would render meaningless the rule of indemnity in wrongful refusal to defend cases and ignores the law of assignment.” Red Giant Oil Co. v. Lawlor, supra, 528 N.W.2d 534. We acknowledge that the possibility of fraud or collusion exists when an injured party and an insured enter into a stipulation conditioned on the injured party’s agreement to seek satisfaction against the insured’s insurance carrier and not against the insured. We are convinced, however, that the appropriate method by which to address this possibility is not to assume such impropriety but, rather, to permit the insurer to contest the stipulated judgment on the ground that it was improperly obtained. “[0]ur system of justice is adequately equipped to discern the existence of fraud and collusion.” (Internal quotation marks omitted.) Id.; see also Keystone Ins. Co. v. Raffile, 225 Conn. 223, 236, 622 A.2d 564 (1993) (“[w]e see no reason why the traditional tests of credibility, testimony under oath and cross-examination . . . are insufficient to provide protection against fraudulent claims”).

Accordingly, we are satisfied that the right of the insurer to challenge the settlement entered into by its insured on grounds of fraud, collusion or unreasonableness provides it with ample opportunity to contest the propriety of such a settlement. We conclude, therefore, that the stipulated judgment is not void as contrary to public policy.

Maryland Casualty further claims that White’s assignment of rights in favor of the plaintiff was not effective because the plaintiff had released White from liability and, accordingly, White had incurred no payment obligation requiring indemnification. In other words, Maryland Casualty claims that if “there is no obligation of White . . . under the judgment, there is no obligation to indemnify White . . . from it.”

This claim is without merit. First, we reject the underlying premise of Maryland Casualty’s argument that the contract of insurance was one of indemnity and not one of general liability. We have recently explained the main difference between a liability policy and an indemnity policy: “Whether an insurance contract is a liability policy or an indemnity policy depends upon the intention of the parties, as evidenced by the phraseology of their agreement .... The chief difference between a liability policy and an indemnity policy is that under the former a cause of action accrues when the liability attaches, while under the latter there is no cause of action until the liability has been discharged, as by payment of the judgment by the insured. ” (Citation omitted; internal quotation marks omitted.) Cohn v. Pacific Employers Ins. Co., 213 Conn. 540, 546-47, 569 A.2d 544 (1990). The policy issued by Maryland Casualty covering White provides that Maryland Casualty “will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.” Thus, the insurance policy is plainly one of liability rather than indemnity.

Furthermore, as we have previously stated, “[t]he [insurer], after breaking the contract by its unqualified refusal to defend, should not thereafter be permitted to seek the protection of that contract in avoidance of its indemnity provisions.” Missionaries, supra, 155 Conn. 114. “An insurer may not hide behind the language of the policy after the insurer abandons its insured and the insured settles the claim by agreement.” Red Giant Oil Co. v. Lawlor, supra, 528 N.W.2d 532.

We conclude, therefore, that the stipulated judgment was in all respects enforceable. Accordingly, Maryland Casualty’s claim must fail.

II

Maryland Casualty next claims that the plaintiff failed to sustain his burden of proof that the stipulated judgment in the amount of $500,000 was reasonable and, further, that the trial court improperly precluded Maryland Casualty from adducing evidence of the unreasonableness of the stipulated settlement. We disagree.

The following additional facts are necessary to our resolution of this issue. Prior to the commencement of trial, the plaintiff filed a motion in limine seeking to prohibit Maryland Casualty from offering evidence concerning any defenses that may have been available to White in an action by the plaintiff against White. The trial court granted the plaintiffs motion to the extent that Maryland Casualty sought to rely on such evidence as a defense to this action. The trial court expressly indicated, however, that such evidence might otherwise be admissible as proof that the settlement between the plaintiff and White was unreasonable.

After the plaintiff had testified on direct examination, Maryland Casualty sought to question him as to whether, in agreeing to the $500,000 settlement, he had considered the extent to which the decedent’s fall may have been due to the decedent’s own negligence. Maryland Casualty also sought to elicit from the plaintiff information concerning the decedent’s activities during the weekend preceding the accident, apparently for the purpose of demonstrating that the decedent’s possible use of cocaine or alcohol over that weekend may have been a contributing cause of the accident. The trial court sustained the plaintiffs objection to this line of questioning on the ground that any possible link between the decedent’s conduct in the days preceding the accident and the cause of the accident was so attenuated that the jury would be required to speculate as to any such relationship.

William Wall, the president of White, also testified for the plaintiff. On direct examination, Wall testified about White’s purchase of liability insurance through Goodwin and its efforts to secure coverage and a defense by Maryland Casualty in the plaintiffs action against White. On cross-examination, Maryland Casualty sought to elicit testimony from Wall regarding the issues of comparative negligence and workers’ compensation. The trial court sustained the plaintiffs objection to the questions on the ground that Maryland Casualty had failed to link the proffered testimony to any issue in this case.

The plaintiff also presented the testimony of Dale Faulkner, an attorney, regarding the reasonableness of the $500,000 settlement. Although Faulkner opined that the settlement was reasonable, he acknowledged that he had not considered the strength of the plaintiffs case on liability in reaching his determination. On cross-examination, Maryland Casualty sought to ask Faulkner whether he believed that the plaintiff and Wall had considered possible defenses to the wrongful death action in reaching their agreement. The trial court sustained the plaintiffs objection to this question, because there was insufficient evidence in the record substantiating these defenses, thereby making the question speculative.

Michael Buckmir, an insurance claims consultant with experience in arbitration and mediation, also testified for the plaintiff. Buckmir stated that, in his opinion, the $500,000 settlement was reasonable and, in addition, that he had taken the issue of liability into account in reaching his conclusion. Maryland Casualty sought to cross-examine Buckmir regarding the possibility that the plaintiffs claim against White might have been barred by the exclusivity provisions of the workers’ compensation laws. The trial court sustained the plaintiffs objection to this question. The court, however, allowed Maryland Casualty to conduct avoir dire examination of Buckmir outside the presence of the jury. During his voir dire testimony, Buckmir stated that the decedent had been an independent contractor and not an employee of White at the time of the accident. At the conclusion of Buckmir’s voir dire testimony, Maryland Casualty renewed its request to question Buckmir regarding the possibility that the plaintiffs claims against White might be prohibited by the workers’ compensation statutes. In light of Buckmir’s testimony, and in the absence of any other evidence to indicate that the decedent was an employee of White at the time of his accident, the trial court denied Maryland Casualty’s request.

The sole witness for the defense was Conrad Seifert, an attorney who had represented the plaintiff in connection with the negotiations that culminated in the stipulated judgment. Maryland Casualty sought to question Seifert about the possibility that White might have had a workers’ compensation defense to the plaintiffs wrongful death claim against it. Maryland Casualty argued that testimony by Seifert on this issue might tend to establish that the settlement was collusive. The trial court sustained the plaintiffs objection to this line of inquiry.

It is well settled that when an insurer improperly fails to defend an insured who subsequently settles the case with the injured party, the insurer is estopped from raising the issue of the insured’s liability as a defense to an action arising from the insurer’s failure to defend. See 2 Restatement (Second), Judgments § 58 (1) (a) (1982) (“indemnitor is estopped from disputing the existence and extent of the indemnitee’s liability to the injured person”); see also Schurgast v. Schumann, 156 Conn. 471, 491, 242 A.2d 695 (1968) (“In the instant case, [the insurer] chose to refuse to defend and, in so doing, breached its contract with [the insured]. It is therefore under a duty to pay the judgment obtained against the [insured] by [the injured party] up to the limit of liability fixed by its policy.”). Nevertheless, the plaintiff is required to prove that the settlement — whether it be by stipulated judgment or otherwise — was reasonable. See Alderman v. Hanover Ins. Group, supra, 169 Conn. 611.

In determining whether a settlement is reasonable, the jury is entitled to consider not only the damage sustained by the injured party, but also the likelihood that the injured party would have succeeded in establishing the insured’s liability. “In order to recover the amount of the settlement from the insurer, the insured need not establish actual liability to the party with whom it has settled ‘so long as ... a potential liability on the facts known to the [insured is] shown to exist, culminating in a settlement in an amount reasonable in view of the size of possible recovery and degree of probability of [a] claimant’s success against the [insured].’ ” (Emphasis added.) Luria Bros. & Co. v. Alliance Assurance Co., 780 F.2d 1082, 1091 (2d Cir. 1986). Accordingly, the strength of the plaintiffs case is a factor that the jury may consider in deciding whether the settlement is reasonable.

Maryland Casualty first maintains that the plaintiff failed to present any evidence on the reasonableness of the settlement between the plaintiff and White. This assertion is simply incorrect. As described earlier, the plaintiff presented the testimony of two experts, Faulkner and Buckmir, who opined that a settlement of $500,000, plus interest, was reasonable. Although Faulkner acknowledged that he had not taken liability into account in making his determination, Buckmir’s testimony carried no such limitation. Maryland Casualty has provided no persuasive reason why the testimony of these two witnesses was not sufficient to sustain the plaintiffs burden of proof regarding the reasonableness of the settlement.

Maryland Casualty also claims that the trial court improperly precluded it from adducing evidence of the unreasonableness of the settlement. Specifically, Maryland Casualty maintains that the trial court unduly limited its examination of the plaintiff, Wall, Faulkner, Buckmir and Seifert regarding possible defenses that White would have had to the plaintiffs wrongful death claim, testimony which, Maryland Casualty asserts, would have demonstrated the unreasonableness of the settlement. We disagree.

With this background, we now turn to Maryland Casualty’s claims. Our careful review of the trial record persuades us that none of the challenged evidentiary rulings constituted an abuse of discretion.

With respect to Maryland Casualty’s cross-examination of the plaintiff, Faulkner and Buckmir, the trial court reasonably concluded that the testimony sought to be adduced was too speculative. In the case of each of these witnesses, Maryland Casualty has made no showing that its questions were founded on more than conjecture or surmise. With respect to Wall, Maryland Casualty failed to link Wall’s proffered testimony to the reasonableness of the settlement between the plaintiff and White and, accordingly, the trial court did not abuse its discretion in prohibiting the challenged questioning.

As to Seifert, Maryland Casualty claims that it was precluded from questioning him about workers’ compensation as a possible defense to liability. This assertion mischaracteiizes the record, which reveals that Maryland Casualty sought to question Seifert for the purpose of establishing collusion between the plaintiff and White. Although the issues of reasonableness and collusion are not unrelated, they are not interchangeable. Having argued in the trial court only that Seifert’s proffered testimony was admissible on the issue of collusion, Maryland Casualty will not now be heard to claim that the testimony was improperly excluded because it may have been relevant to another issue in the case. See, e.g., Mays v. Mays, 193 Conn. 261, 268, 476 A.2d 562 (1984). We conclude, therefore, that the trial court did not improperly limit Maryland Casualty’s right to elicit testimony regarding the alleged unreasonableness of the settlement.

Ill

Maryland Casualty further claims that the trial court improperly instructed the jury that it must prove its special defense of collusion by clear and convincing evidence. Maryland Casualty argues that it should have been required to prove collusion by the lesser standard of a preponderance of the evidence in light of the fact that it sought to raise its claim of collusion as a shield rather than as a sword. We are not persuaded.

Maryland Casualty concedes that the appropriate standard of proof for the party who seeks to prevail in a civil fraud action is clear and convincing evidence. See, e.g., Rego v. Connecticut Ins. Placement Facility, 219 Conn. 339, 343, 593 A.2d 491 (1991); Kilduff v. Adams, Inc., 219 Conn. 314, 327-29, 593 A.2d 478 (1991). “In law, collusion is a species of fraud. Bouvier’s Law Dictionary (Rawle’s 3d Rev.); see Mills v. Mills, 119 Conn. 612, 619, 179 A. 5 [1935].” Gaer Bros., Inc. v. Mott, 144 Conn. 303, 309, 130 A.2d 804 (1957). Thus, collusion may be defined as “[a]n agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law.” (Internal quotation marks omitted.) E. Udolph, Inc. v. Aetna Casualty & Surety Co., 214 Conn. 741, 751, 573 A.2d 1211 (1990). Because collusion is a form of fraud, we see no reason, and Maryland Casualty has presented none, why the standard of proof for establishing collusion should be different depending on whether it comprises a cause of action or is raised as a special defense. See Pelarinos v. Henderson, 34 Conn. App. 726, 731, 643 A.2d 894 (“[t]he defendants had the burden of proving their special defense of fraudulent misrepresentation by clear and convincing evidence”), cert. denied, 231 Conn. 909, 648 A.2d 155 (1994). Accordingly, we reject Maryland Casualty’s claim.

IV

Maryland Casualty also contends that the trial court’s award of interest pursuant to § 52-192a violated its federal constitutional rights to a jury trial and due process of law. We disagree.

The trial court, on the basis of the jury’s finding that the plaintiff was entitled to interest pursuant to § 37-3a, awarded the plaintiff interest in the amount of $191,666.70. Further, in accordance with the provisions of § 52-192a, the trial court concluded that the plaintiff had “recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment’ ” of $500,000 and, accordingly, awarded additional statutory interest of $318,166.40. Maryland Casualty claims that the award of interest under § 52-192a, either alone or in conjunction with the award of interest under § 37-3a, improperly chilled its right to a trial by jury and violated its right to due process because the award was fundamentally unfair.

Maryland Casualty first maintains that the assessment of interest under § 52-192a constituted a punishment for its exercising its right to elect a jury trial and, therefore, impermissibly infringed upon that right. This argument is without merit. The interest assessment is not levied on all who elect to go to trial in light of an offer of judgment, but only on those who subsequently suffer a jury verdict against them in excess of the amount set forth in the offer. Furthermore, the strong public policy favoring the pretrial resolution of disputes; see Grayson v. Wofsey, Rosen, Kweskin & Kuriansky, 231 Conn. 168, 174, 646 A.2d 195 (1994); is substantially furthered by encouraging defendants to accept reasonable offers of judgment. We find no constitutional violation in the legislature’s decision to implement this important public policy in such a manner.

Maryland Casualty also claims that § 52-192a is fundamentally unfair in violation of its constitutional right to due process. Specifically, it contends that its “[d]ue [pjrocess right is protected only by requiring the trial court to determine the reasonableness of the [o]ffer of judgment at the time of filing” and that it is unfair to award § 37-3a interest without deducting any other settlement payments from the amount of the jury award when applying § 52-192a.

“Legislative efforts to structure and accommodate the burdens and benefits of economic life carry a presumption of constitutionality. One complaining of a due process violation flowing therefrom must establish that the legislature has acted in an arbitrary and irrational way.” Schieffelin & Co. v. Dept. of Liquor Control, 194 Conn. 165, 186, 479 A.2d 1191 (1984). “Even under this less exacting test of constitutionality, an economic regulation will survive a substantive due process test only if it is both rational and related to a legitimate state purpose. Campbell v. Board of Education, 193 Conn. 93, 105, 475 A.2d 289 (1984).” Fair Cadillac-Oldsmobile Isuzu Partnership v. Bailey, 229 Conn. 312, 319, 640 A.2d 101 (1994). As we have indicated, § 52-192a furthers the legitimate public policy interest of encouraging the pretrial settlement of claims. Moreover, the legislature is not required to implement a public policy in a manner that is most narrowly tailored to achieve its end; its legislation will survive a substantive due process challenge so long as it is rationally related to a legitimate state purpose. Because it is reasonable to use the total amount of the jury award as the benchmark for assessing the reasonableness of the offer of judgment, the trial court’s application of § 52-192a does not run afoul of the due process clause.

V

Finally, Maryland Casualty claims that the trial court improperly failed to order a remittitur under General Statutes § 52-216a. Specifically, it asserts that the trial court was required to deduct from the judgment the settlement payments totalling $170,000 that the plaintiff received from Goodwin and from Barbara and George Backman. We disagree.

“The decision whether to reduce a jury verdict because it is ‘excessive as a matter of law’ rests solely within the discretion of the trial court, pursuant to General Statutes § 52-216a. See, e.g., Seals v. Hickey, 186 Conn. 337, 348, 441 A.2d 604 (1982). Further, the proper standard of review of a trial court’s decision to grant or deny a motion to set aside a verdict as excessive as a matter of law is that of an ‘abuse of discretion.’ Oakes v. New England Dairies, Inc., 219 Conn. 1, 14, 591 A.2d 1261 (1991); Seals v. Hickey, supra, 348.” Mulligan v. Rioux, 229 Conn. 716, 753, 643 A.2d 1226 (1994), on remand, 38 Conn. App. 546, 662 A.2d 153 (1995).

The trial court found “the total amount of the judgment together with the prior settlements not to be unreasonable, not to shock [the] conscience.” In light of the fatal injuries suffered by the decedent, Maryland Casualty has failed to establish that the trial court abused its discretion in not finding the judgment amount excessive and thereby refusing to order a remittitur.

Maryland Casualty relies on Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392, 546 A.2d 284 (1988), aff'd, 211 Conn. 67, 557 A.2d 540 (1989), in which the Appellate Court concluded that joint and several liability would attach, thereby rendering a subsequent damage award improperly duplicative of an earlier one, if “(1) [the defendants in the two actions] are joint tortfeasors, (2) the judgment which was satisfied involved damages for the exact same injuries as involved in the present action, and (3) the determination by the factfinder on the issue of damages in the first action is entitled to govern the amount of damages involved in the present action under the doctrine of collateral estoppel.” Id., 397-98. When an award is made pursuant to a settlement, however, the underlying issues have not been fully and fairly litigated, and, therefore, the earlier award can have no preclusive effect on a subsequent action. See Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 600, 674 A.2d 1290 (1996). Gionfriddo thus provides no authority for Maryland Casualty’s argument.

The judgment is affirmed.

In this opinion the other justices concurred.

       The plaintiff is the father of the decedent.

       Goodwin, Loomis and Britton, Inc., an insurance agency, was originally named as a defendant in this action. The complaint against the agency was withdrawn prior to trial, however, after the plaintiffs claim against the agency was settled in the amount of $45,000.

       The plaintiff’s action against Barbara and George Backman was settled prior to irial for $125,000.

       As the basis for its decision not to defend, Maryland Casualty informed Goodwin that the insurance policy was not in effect at the time of the decedent’s accident because it previously had been cancelled for nonpayment of premium. For purposes of this appeal, however, Maryland Casualty concedes that White was entitled to coverage under the liability policy issued to it by Maryland Casualty.

       The stipulation entered into by the plaintiff and White on May 31, 1991, upon which the trial court rendered judgment, provided in relevant part:
      “3. The Defendant, White, Wheeler and Co., Inc., is indebted to and owes the Plaintiff the sum of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) as full settlement of this litigation by the Plaintiff directed against White, Wheeler and Co., Inc.
      “4. In order to induce the Plaintiff to enter into this Stipulated Judgment, the Defendant, White, Wheeler and Co., Inc., through its President, William Wall, has represented that White, Wheeler and Co., Inc. is essentially asset-less except for contract and/or tort claims and rights it may have against its former insurance agents, Goodwin, Loomis and Britton, Inc. of 90 Statehouse Square, Hartford, Connecticut or others, relating to insurance contract matters between them, including but not limited to rights related to a binder issued by Goodwin, Loomis and Britton, Inc. on June 26, 1989, on behalf of White, Wheeler and Co., Inc.
      “5. The Defendant, White, Wheeler and Co., Inc., through its President, William Wall, agrees to assign all tort and contract claims and rights it has against Goodwin, Loomis and Britton, Inc. or other[s] from which ultimate satisfaction and payment of this Five Hundred Thousand Dollar ($500,000.00) Stipulated Judgment may be had. . . .
      “6. The Plaintiff, Charles Black, Administrator of the Estate of DeWitt C. Black . . . agrees to pursue collection and satisfaction of this Five Hundred Thousand ($500,000.00) Judgment against White, Wheeler and Co., Inc. solely through enforcement and pursuance of the above-described rights and claims and to otherwise release White, Wheeler and Co., Inc. and its officers from further liability regarding the payment and satisfaction of this judgment.”

       General Statutes § 38a-321 provides in relevant part: “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. . . . 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 trial court subsequently directed a verdict in favor of Maryland Casualty on the CUTPA/CUIPA count. The plaintiff has filed a cross appeal challenging the directed verdict on that count and, in addition, claiming that the trial court improperly instructed the jury on the issue of punitive damages. Prior to oral argument in this court, however, we granted the plaintiff’s conditional motion to withdraw his cross appeal in the event that we affirmed the judgment of the trial court. Because we today affirm the trial court’s judgment, we treat the cross appeal as withdrawn.

       General Statutes § 52-192a provides in relevant part: “Offer of judgment by plaintiff. Acceptance by defendant. Computation of interest. . . .
      “(b) After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment’, the court shall add to the amount so recovered twelve per cent annual interest on said amount, computed from the date such offer was filed in actions commenced before October 1, 1981. In those actions commenced on or after October 1, 1981, the interest shall be computed from the date the complaint in the civil action was filed with the court if the ‘offer of judgment’ was filed not later than eighteen months from the filing of such complaint. If such offer was filed later than eighteen months from the date of filing of the complaint, the interest shall be computed from the date the ‘offer of judgment’ was filed. The court may award reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly. This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney’s fees in accordance with the provisions of any written contract between the parties to the action.”

       The interrogatories submitted to the jury, and the jury’s responses thereto, are as follows:
      “1. Do you find that [the] defendant Maryland Casualty Company breached its contract with White, Wheeler & Co., Inc.?
      “Yes.
      “2. Do you find that [the] defendant Maryland Casualty Company acted negligently as to White, Wheeler & Co., Inc.?
      “Yes.
      “3. Do you find that the plaintiff has satisfied the three elements of the direct action statute?
      “Yes.
      “4. Do you find that the $500,000 judgment was reasonable?
      “Yes.
      “5. Do you find that the assignment and judgment were obtained by way of coEusion?
      “No.

        “6. If your answer to Interrogatories Number 1 or Number 2 or Number 3, is ‘Yes,’ and your answer to Interrogatory Number 4 is ‘Yes’ and your answer to Interrogatory Number 5 is ‘No,’ sign the plaintiffs verdict form.
      “7. If your answers to Interrogatories Number 1 and Number 2 and Number 3 are ‘No,’ sign the defendant’s verdict form.
      “8. If your answer to Interrogatories Number 1 or Number 2 or Number 3 is ‘Yes,’ and your answer to Interrogatory Number 4 is ‘No’ or Interrogatory Number 5 is ‘Yes,’ sign the defendant’s verdict form.
      “9. Do you find that the defendant breached its duty to deal fairly and in good faith with White, Wheeler & Co., Inc.?
      “Yes.
      “10. Do you award punitive damages to the plaintiff?
      “No.
      “11. Do you find that the plaintiff is entitled to an award of interest?
      “Yes.
      “12. If your answer to Interrogatory Number 11 is ‘Yes,’ enter the day upon which the award of interest should commence?
      “19 June 1991.”

       General Statutes § 37-3a provides in relevant part: “Bate recoverable as damages. Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable. Judgment may be given for the recovery of taxes assessed and paid upon the loan, and the insurance upon the estate mortgaged to secure the loan, whenever the borrower has agreed in writing to pay such taxes or insurance or both. . . .”

       Maryland Casualty also claims that the trial court improperly: (1) denied its motion for a directed verdict on the bad faith count; and (2) instructed the jury regarding the standard of proof applicable to establish bad faith. Although the jury found that Maryland Casualty had acted in bad faith in denying coverage and refusing to defend, it awarded the plaintiff no damages on the bad faith count. See footnote 10. At oral argument, Maryland Casualty acknowledged that it had suffered no cognizable aggrievement in light of the jury’s conclusion that the plaintiff was not entitled to any damages on the bad faith count. Accordingly, we decline to address Maryland Casualty’s claims concerning that count.

       We also note that the plaintiffs claim under § 38a-321 does not depend on the assignment of rights under the stipulation because, under that statutory provision, the insurer is liable whether its contract is one of liability or indemnity. See General Statutes § 38a-321 (insurer is absolutely liable whenever there is a loss under the policy, and “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”).

       The plaintiff requested that the trial court preclude ‘ ‘any evidence dealing with the question of whether the decedent was an employee of White . . . and any testimony or other evidence dealing with alleged conlributory or comparative negligence arising from alleged drug use, or that the decedent should have looked where he was walking, or any other evidence tending to show the decedent was in any way responsible for his own death . . . .”

       The trial court stated in relevant part as follows: “[T]he Court will allow the Defense to counter evidence offered by the Plaintiff as to the reasonableness of the settlement entered into between the Plaintiff and [White]. The Court will make its decision on the specific evidence offered by the Defense which is similar to underlying issues evidence as the case proceeds.” The trial court later amplified its ruling on the plaintiffs motion in limine as follows: “I think there has to be some consideration on the liability, as much as you might consider liability at a pretrial or a special masters hearing. Not in detail, not argued, not evidentiary. Some indication of liability issues. I don't know how you could find a settlement to be reasonable where [liability] is completely foreclosed. Now liability can’t be brought in as the basis of the defense here because we’ve stricken the special defenses, but on the issue of reasonableness, I think to some extent, liability has to be considered. So I will rule in favor of the Defense in this case as far as the fact that some consideration of liability should enter into the expert's opinion.”

       For example, Maryland Casualty never claimed that this line of questioning was related to the issue of the reasonableness of the settlement.

       In its jury charge, the trial court expressly instructed the jury that, in evaluating the issue of the reasonableness of the settlement, it was to take into consideration the strength of the liability and damages elements of the plaintiffs wrongful death claim against White: “Now in determining if the amount was reasonable, there’s no mathematical formula by which you must proceed. The test as to whether the settlement is reasonable is what a reasonably prudent person in the position of the Defendant would have settled for considering the liability and damage aspects of the Plaintiffs claim, as well as the risk of going to trial.”

       The plaintiff also presented the testimony of Ward Curran, an economist, who testified regarding the future earning capacity of the decedent in substantiation of the damages element of the plaintiffs case. Maryland Casualty has not challenged the sufficiency of the evidence presented by the plaintiff on the subject of damages.

       It is axiomatic that the trial court has broad discretion to determine the admissibility of evidence, and its rulings will not be disturbed on appeal absent an abuse of that discretion. Konover Development Corp. v. Zeller, 228 Conn. 206, 232, 635 A.2d 798 (1994).

       We note that Maryland Casualty offered no witness of its own to establish, as a matter of fact, either that the decedent had been an employee of White or that the decedent had been partially responsible for the accident.

       The (rial court charged the jury as follows: “If you find proven by the Defendant by clear and convincing evidence that the events leading up to the stipulated judgment were collusive, then you must render a verdict for the Defendant and award nothing to the Plaintiff.”

       Maryland Casualty cites Rego v. Connecticut Ins. Placement Facility, supra, 219 Conn. 339, in support of its claim. InRego, the defendant insurance carrier had pleaded the special defenses of arson and concealment or misrepresentation in an action to recover fire insurance proceeds. At the conclusion of the trial, the court instructed the jury that the insurer was required to establish its special defense of concealment or misrepresentation by clear and convincing evidence. On appeal, we concluded, in light of the fact that the insurer was required to prove its special defense of arson by a preponderance of the evidence; see Verrastro v. Middlesex Ins. Co., 207 Conn. 179, 540 A.2d 693 (1988); that it would be illogical and impractical to require the insurer to prove its special defense of concealment or misrepresentation by clear and convincing evidence. Rego v. Connecticut Ins. Placement Facility, supra, 343-46. In rejecting the insured’s claim regarding the appropriate standard of proof, we also relied on the distinction between common law fraud and the insurer’s defense of concealment or misrepresentation, concluding that the two claims were not “sufficiently similar to warrant applying an elevated burden of proof to the latter.” Id., 347. Rego, therefore, is inapposite to this appeal.

       Although Maryland Casualty has also raised this claim under the analogous provisions of the Connecticut constitution, it has provided no independent analysis of the claim under the state constitution. Accordingly, we do not consider Maryland Casualty’s state constitutional argument. See State v. Lopez, 235 Conn. 487, 497, 668 A.2d 360 (1995); State v. Joly, 219 Conn. 234, 258 n.16, 593 A.2d 96 (1991).

         Maryland Casualty’s sole challenge is to the constitutionality of § 52-192a as applied to the facts of this case. Maryland Casualty does not claim that the trial court improperly construed either § 52-192a or § 37-3a in awarding interest under those two statutory provisions.

       We also note that to the extent that Maryland Casualty challenges the fairness of including an award of interest under § 37-3a in the determination of whether the jury award met or exceeded the offer of judgment, that argument provides no basis for Maryland Casualty to prevail. Even if the trial court had not considered the § 37-3a interest in determining the propriety of an interest, award under § 52-192a, because the jury’s award of $500,000 was equal to the plaintiff’s offer of judgment, an award of interest under § 52-192a would nevertheless have been proper.

       General Statutes § 52-216a provides: “Reading of agreements or releases to jury prohibited. Adjustments for excessive and inadequate verdicts permitted. An agreement with any tortfeasor not to bring legal action or a release of a tortfeasor in any cause of act ion shall not be read to a jury or in any other way introduced in evidence by either party at any time during the trial of the cause of action against any other joint tortfeasors, nor shall any other agreement not to sue or release of claim among any plaintiffs or defendants in the action be read or in any other way introduced to a jury. If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial. If the court concludes that the verdict is inadequate as a matter of law, it shall order an additur, and upon failure of the party so ordered to add the amount ordered by the court, it shall set aside the verdict and order a new trial. This section shall not prohibit the introduction of such agreement or release in a trial to the court.”

       See footnotes 3 and 4.