author: BORDEN, J. PALMER, J., MCDONALD, J.,

text:
    SEAN DOYLE v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY
    (SC 15939)
    Borden, Berdon, Norcott, Katz, Palmer, McDonald and Peters, Js.

      Argued December 3, 1998
    officially released December 23, 1999

      Bernard Pellegrino, for the appellant (plaintiff).

      Karen T. Gerber, with whom was Frederick L. Mur-ólo, for the appellee (defendant).

       This appeal originally was heard by a panel consisting of Justices Borden, Berdon, Norcott, Palmer and McDonald. Thereafter, the court, pursuant to Practice Book § 70-7 (b), sua sponte determined to consider the case en banc. Justices Katz and Peters were added to the panel, and they read the record, briefs and transcript of the original oral argument.
      The listing of justices reflects their seniority status on this court as of the date of argument.

       December 23, 1999, the date that this opinion was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

BORDEN, J.

The sole question raised by this certified appeal is whether a tortfeasor’s vehicle is underinsured within the meaning of General Statutes § 38a-336 if the tortfeasor has a $100,000 single limit liability policy and the plaintiff has a $100,000 per person and $300,000 per accident split limit uninsured motorist policy. The trial court concluded that, in such circumstances, the tort-feasor is not underinsured and, on appeal, the Appellate Court agreed. We affirm the judgment of the Appellate Court.

The facts relevant to this appeal are undisputed. The plaintiff, Sean Doyle, was operating his vehicle on Academy Road in Cheshire when he was struck head-on by an automobile owned and operated by Angela Catone (tortfeasor). The plaintiff, who was alone in his vehicle, suffered personal injuries and other damages. A passenger in the tortfeasor’s automobile was killed in the accident.

At the time of the accident, the tortfeasor had a $100,000 single limit liability policy issued by Liberty Mutual Insurance Company. The plaintiff was paid $33,382 under that policy as compensation for his injuries and property damage. The liability coverage of the tortfeasor’s vehicle was exhausted by payments made to the plaintiff and to the estate of the deceased passenger of the tortfeasor’s vehicle.

The plaintiff was insured under a policy issued by the defendant, Metropolitan Property and Casualty Insurance Company, with uninsured and underinsured motorist coverage limits of $100,000 per person and $300,000 per accident. The plaintiff brought this action against the defendant seeking underinsured motorist benefits under that policy.

Both parties moved for summary judgment. The plaintiff claimed that, because more than one claimant had sought recovery under the tortfeasor’s liability policy, the determination of whether the tortfeasor was underinsured within the meaning of § 38a-336 (e); see footnote 2 of this opinion; must be made by comparing the tortfeasor’s policy limit of $100,000 with the $300,000 per accident limit of the plaintiffs uninsured motorist policy. Under the interpretation urged by the plaintiff, he was entitled to uninsured motorist benefits because the applicable limits of the tortfeasor’s policy are less than the applicable limits of his uninsured motorist policy. The defendant claimed, to the contrary, that the proper comparison is between the tortfeasor’s policy limit of $100,000 and the $100,000 per person limit of the plaintiffs uninsured motorist policy. Under that interpretation, the tortfeasor was not underinsured, and hence the plaintiff was not entitled to recover under his uninsured motorist policy because the applicable limits of the tortfeasor’s policy are equal to, not less than, the applicable limits of his uninsured motorist policy.

The trial court rendered summary judgment for the defendant, concluding that it was bound by D’Arcangelo v. Hartford Casualty Ins. Co., 44 Conn. App. 377, 379-80, 689 A.2d 502, cert. denied, 240 Conn. 925, 692 A.2d 818 (1997), wherein the Appellate Court had held that “[w]here the [claimant’s uninsured motorist] policy is a split limit policy, ‘the total of the per person limit is the amount of liability insurance available to the claimant . . . .’ ” The plaintiff then appealed to the Appellate Court, which summarily affirmed the judgment of the trial court. Doyle v. Metropolitan Property & Casualty Ins. Co., 48 Conn. App. 902, 710 A.2d 193 (1998). We granted the plaintiffs petition for certification limited to the following issue: “Did the Appellate Court properly conclude that the tortfeasor’s vehicle is not underin-sured when the tortfeasor has a $100,000 liability policy and the plaintiff has a $100,000/$300,000 split limit uninsured motorist policy in circumstances where, due to the existence of multiple claimants, the plaintiffs recovery under the tortfeasor’s policy is less than $100,000?” Doyle v. Metropolitan Property & Casualty Ins. Co., 245 Conn. 903, 719 A.2d 1163 (1998).

Whether the tortfeasor’s vehicle is underinsured in the present case is a matter of statutory interpretation. “Statutory interpretation is a matter of law over which this court’s review is plenary. ... In construing statutes, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . 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.” (Citation omitted; internal quotation marks omitted.) Shawmut Mortgage Co. v. Wheat, 245 Conn. 744, 748-49, 717 A.2d 664 (1998).

“[B]roadly stated . . . the purpose of underinsured motorist coverage is to protect the named insured and other additional insureds from suffering an inadequately compensated injury caused by an accident with an inadequately insured automobile.” (Internal quotation marks omitted.) Florestal v. Government Employees Ins. Co., 236 Conn. 299, 305, 673 A.2d 474 (1996). “Application of § 38a-336 involves two separate inquiries. First, it must be determined whether the tortfeasor’s vehicle is an ‘underinsured vehicle’ within the meaning of the statute. Second, after this determination is made and underinsured motorist coverage is found to be applicable, the finder of fact calculates the amount of the award to be paid the victim.” Covenant Ins. Co. v. Coon, 220 Conn. 30, 33, 594 A.2d 977 (1991). Because we conclude that the tortfeasor’s vehicle is not underin-sured within the meaning of § 38a-336, we address only the first of these two inquiries in the present case.

“[I]n determining whether a motor vehicle is underin-sured for purposes of [§ 38a-336], the aggregate of the limits of all such bonds and policies on the tortfeasor’s motor vehicle is compared against the amount of uninsured motorist coverage of the insured. ... If the aggregate is less than the limits of liability in the uninsured motorist portion of the insured’s policy, then the underinsurance coverage is activated.” (Citation omitted; internal quotation marks omitted.) American Motorists Ins. Co. v. Gould, 213 Conn. 625, 630, 569 A.2d 1105 (1990), overruled in part on other grounds, Covenant Ins. Co. v. Coon, supra, 220 Conn. 37. “Courts construing statutes like [§ 38a-336] that compare uninsured motorist coverage limits with tortfeasor liability limits have generally held that the legislative objective was simply to give an insured who is injured in an accident the same resource he would have had if the tortfeasor had carried liability insurance equal to the amount of the insured’s uninsured motorist coverage.” American Motorists Ins. Co. v. Gould, supra, 632.

This court has not considered specifically the question of whether a tortfeasor’s vehicle is underinsured within the meaning of § 38a-336 if the tortfeasor’s single limit liability coverage is less than the per accident limit of the plaintiffs split limit uninsured motorist coverage. We conclude, however, that this case is controlled by the consistent reasoning of this court in American Motorists Ins. Co. v. Gould, supra, 213 Conn. 625, and Florestal v. Government Employees Ins. Co., supra, 236 Conn. 299, which compels the conclusion that the judgment of the Appellate Court should be affirmed.

In American Motorists Ins. Co. v. Gould, supra, 213 Conn. 628, the amount of the tortfeasor’s liability insur-anee was $140,000, and the amount of the underinsured motorist insurance coverage provided by the plaintiffs policy was $80,000. We held that the tortfeasor’s vehicle was not an underinsured motor vehicle because, and only because, of the simple comparison between the two figures: the amount of the liability insurance coverage available to the plaintiff, namely, $140,000, was not less than the amount of the underinsured motorist insurance coverage provided by the plaintiffs policy, namely, $80,000. Id., 633.

In Covenant Ins. Co. v. Coon, supra, 220 Conn. 31-32, the amount of the tortfeasor’s liability insurance was $25,000 per person and $50,000 per accident. The under-insured motorist insurance policy at issue provided $50,000 of coverage. We held that the tortfeasor’s vehicle was an underinsured motor vehicle because, and only because, of the simple comparison between the two figures: the amount of the liability insurance coverage available to the plaintiff, namely, $25,000, was less than the underinsured motorist insurance provided by the plaintiffs policy, namely, $50,000. Id., 34. Indeed, we reinforced that reasoning as follows: “We have . . . previously concluded that in determining the tortfea-sor’s liability limit for the purposes of the § 38a-336 (d) comparison, we must examine the amount ‘of liability insurance [that is] available to [the victims].’ . . . American Motorists Ins. Co. v. Gould, [supra, 213 Conn. 633], Here, even though [the tortfeasor] had $50,000 per accident liability limits, [the plaintiff] never had more than $25,000 of this coverage potentially available to her.” (Emphasis in original.) Covenant Ins. Co. v. Coon, supra, 34. We further reinforced that concept by noting that, although Gould “involved a different factual context, in that opinion we compared the uninsured motorist limit against the amount of liability insurance potentially available to the victims.” Id., 34 n.5.

Thereafter, in Florestal v. Government Employees Ins. Co., supra, 236 Conn. 301, the tortfeasor’s liability insurance was $20,000 per person and $40,000 per accident. The underinsured motorist insurance coverage provided by the plaintiffs policy was $20,000 per person and $40,000 per accident. Id., 301-302. We rejected the plaintiffs contentions that Gould should be overruled; id., 305-13; and that, if it were not overruled, it was distinguishable. Id., 313. In rejecting the contention that Gould was decided wrongly, we characterized the holding of that case as follows: “[U]nderinsured motorist benefits are not recoverable under our statutory scheme unless the limits of the underinsured motorist coverage available to the claimant exceed the total amount of liability insurance available to satisfy claims against the tortfeasor. American Motorists Ins. Co. v. Gould, supra, 213 Conn. 628-33; see also Covenant Ins. Co. v. Coon, supra, 220 Conn. 34.” Florestal v. Government Employees Ins. Co., supra, 304. Thus, both by our language and by citing to the particular passages in Gould and Coon, we reasserted implicitly the simple comparison established by both of those cases for determining whether a particular vehicle is an underinsured motor vehicle.

In all of these cases, we reasoned that the determination of whether there was underinsured motorist coverage available to the plaintiff was to be determined by comparing the amount of liability insurance potentially available to the plaintiff from the tortfeasor with the amount of underinsured motorist coverage potentially available to the plaintiff under his or her underinsured motorist policy. These potential availabilities were calculated, moreover, by comparing the respective stated policy limits — liability and underinsured motorist. That comparison is mandated by the specific language of § 38a-336 (e), which provides that “an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy . . . .” Furthermore, this simple comparison — of potentially available liability insurance with potentially available underinsured motorist coverage— was to be done, we held, irrespective of whether the liability coverage had been fully or partially exhausted by other claimants, irrespective of whether the coverage included a split or single limit, and irrespective of the motivation of the plaintiff in either purchasing the underinsured motorist coverage or seeking to recover under it.

Moreover, this calculation is perfectly consistent with the purpose of our underinsured motorist coverage statute. That purpose is to put the injured party in the same position — no worse and no better — that the party would have been in had the tortfeasor carried liability insurance equal to or more than the amount of underinsured motorist coverage available to the injured party. “[T]he purpose of underinsured motorist coverage is to protect the named insured and other additional insureds from suffering an inadequately compensated injury caused by an accident with an inadequately insured automobile.” (Internal quotation marks omitted.) Florestal v. Government Employees Ins. Co., supra, 236 Conn. 305. That purpose compels the calculation that we have used in our prior cases because, if the amount of the liability insurance potentially available to the injured party is equal to or more than the amount of the underinsured motorist coverage potentially available to that party, the tortfeasor cannot reasonably be considered, from the viewpoint of the injured party, to be insured inadequately.

In this regard, the function of the plaintiffs split underinsured motorist coverage of $100,000 per person and $300,000 per accident is to provide broader coverage for the situation involving multiple claimants, if the tortfeasor is underinsured. Thus, for example, if the tortfeasor had possessed only $75,000 of liability insurance, and there had been three people injured in the plaintiffs vehicle, each claimant would have had $100,000 of underinsured motorist coverage available to him or her, for a total of $300,000. Put another way, by purchasing split underinsured motorist coverage of $100,000 per person and $300,000 per accident, the plaintiff here did not purchase more coverage than that provided by the tortfeasor’s liability policy; instead, he simply purchased the same coverage for more people. Under any circumstances, however, there would be available to the plaintiff — or each of his passengers, if any — $100,000 of underinsured motorist coverage, which is the same as, and not more than, the amount of the liability coverage available to each of them under the tortfeasor’s policy. Thus, where, as in the present case, the tortfeasor has $100,000 in liability insurance, the plaintiffs split underinsured motorist coverage does not convert an otherwise nonunderinsured vehicle into an underinsured vehicle.

In the present case, the comparison between the tort-feasor’s liability coverage and the amount of underin-sured motorist coverage available to the plaintiff compels the conclusion that the plaintiff is not entitled to underinsured motorist benefits. The amount of the tortfeasor’s liability insurance available to the plaintiff was $100,000. Under the plaintiffs underinsured motorist insurance policy, the plaintiff — or any other purported underinsured motorist coverage claimant — had $100,000 available to him. Moreover, this is true irrespective of the fact that the plaintiffs underinsured motorist policy had split limits of $100,000 per person and $300,000 per accident, because no matter what occurs the plaintiff has only $100,000 of such underin-sured benefits available to him. Comparing, therefore, the amount of the liability insurance available to the plaintiff, namely, $100,000, to the amount of the underin-sured motorist coverage available to the plaintiff, namely, $100,000, results in the conclusion that the tort-feasor’s vehicle was not an underinsured motor vehicle and that, therefore, the plaintiff was not entitled to underinsured motorist insurance benefits.

The judgment of the Appellate Court is affirmed.

In this opinion NORCOTT, KATZ and PETERS, Js., concurred.

PALMER, J.,

with whom BERDON and MCDONALD, Js., join, dissenting. I disagree with the majority’s conclusion that the tortfeasor’s vehicle in this case was not underinsured within the meaning of General Statutes (Rev. to 1993) § 38a-336, as amended by Public Acts 1993, No. 93-77, § 2, Public Acts 1993, No. 93-297, § 1, and Public Acts, Spec. Sess., May 25, 1994, No. 94-1, §§ 35 and 36.

As the majority acknowledges, this court never has resolved the question of whether a tortfeasor’s vehicle is underinsured for purposes of § 38a-336 when “the tortfeasor’s single limit liability coverage is less than the per accident limit of the plaintiffs split limit uninsured [and underinsured] motorist coverage.” Neither the language nor the legislative history of § 38a-336 expressly addresses the circumstance in which the underinsured motorist provision of the insured’s policy has two different liability limits.

I believe, however, that the fundamental policy underlying our underinsured motorist statutes mandates the conclusion that the tortfeasor in this case was underin-sured within the meaning of our statutory scheme. It is not disputed that underinsured motorist coverage should be available to protect an injured claimant to the same extent that the claimant would have been protected if the tortfeasor had possessed as much in coverage under his or her liability policy as the claimant possesses under a policy of underinsured motorist coverage. See, e.g., American Motorists Ins. Co. v. Gould, 213 Conn. 625, 630, 632, 569 A.2d 1105 (1990), overruled in part on other grounds, Covenant v. Coon, 220 Conn. 30, 37, 594 A.2d 977 (1991). To make a meaningful comparison between a policy that, like that of the tortfea-sor’s policy, contains a single limit, with a policy that, like that of the plaintiffs policy, contains split limits, it is necessary to treat the tortfeasor’s single limit policy as its split limit equivalent, in this case $100,000 per person and $100,000 per accident. See, e.g., Windsor Ins. Co. v. Judd, 321 Or. 379, 381, 898 P.2d 761 (1995) ($60,000 single limit liability coverage provides “$60,000 per person subject to a limit of $60,000 per accident”); Mutual of Enumclaw Ins. Co. v. Key, 131 Or. App. 130, 132, 883 P.2d 875 (1994) (“[a] single limit policy providing $300,000 of coverage is essentially a split-limit policy with limits of $300,000 per person and $300,000 per accident”). When one compares the tort-feasor’s policy limits as so characterized with the limits of the plaintiffs policy, it is apparent that the tortfeasor was underinsured with respect to the per accident limit of her liability policy. This is true even though the per accident component will be activated only in cases, like this one, involving multiple claimants. Other states with analogous statutes also have drawn similar conclusions. See, e.g., Botting v. Allstate Ins. Co., 707 A.2d 1319, 1321 (Me. 1998); Staub v. Hanover Ins. Co., 251 N.J. Super. 66, 68-69, 596 A.2d 1096 (App. Div. 1991); Prudential Property & Casualty Co. v. Szeli, 83 N.Y.2d 681, 687-88, 635 N.E.2d 282, 613 N.Y.S.2d 113 (1994). Indeed, other than our Appellate Court’s decision in D'Arcangelo v. Hartford Casualty Ins. Co., 44 Conn. App. 377, 689 A.2d 502, cert. denied, 240 Conn. 925, 692 A.2d 818 (1997), I am aware of no case in which any court has reached a contrary conclusion.

The statutory interpretation urged by the plaintiff is consistent with the remedial nature of our underinsured motorist statute. See, e.g., Williams v. State Farm Mutual Automobile Ins. Co., 229 Conn. 359, 373, 641 A.2d 783 (1994) (“our [under]insured motorist statute is remedial in nature and designed to protect people injured by [underjinsured motorists”). It is axiomatic “that remedial statutes should be construed liberally in favor of those whom the law is intended to protect.” Dysart Corp. v. Seaboard Surety Co., 240 Conn. 10, 18, 688 A.2d 306 (1997); see also Cotto v. United Technologies Corp., 251 Conn. 1, 8-9, 738 A.2d 623 (1999). Construing our statute in light of these considerations, the plaintiffs policy protects him against several related, but potentially distinct, eventualities. Under the per person component of his underinsured motorist coverage, he is protected against a loss in circumstances in which the tortfeasor carries a lesser amount of liability insurance. Under the per accident component of the plaintiffs underinsured motorist coverage, he is protected against losses of up to $100,000 in the event of an accident where, based on the existence of multiple claimants, the tortfeasor’s liability policy is exhausted before the plaintiff has recovered $100,000 in compensation under the tortfeasor’s policy.

I disagree with the majority that this court’s holding in Covenant Ins. Co. v. Coon, supra, 220 Conn. 30, leads to a contrary conclusion. In Coon, the tortfeasor’s policy provided for split limit liability coverage of $25,000 per person and $50,000 per accident. Id., 31-32. The owner of the automobile in which the claimant was injured carried a single limit $50,000 underinsured motorist policy. Id., 31. After exhausting the tortfeasor’s $25,000 per person liability limits, the claimant sought to recover under, inter alia, the owner’s underinsured motorist policy. Id., 32. The insurer argued that the tortfeasor’s vehicle was not underinsured within the meaning of § 38a-336 because the tortfeasor’s $50,000 per accident liability coverage was not less than the $50,000 single limit underinsured motorist policy under which the claimant sought to recover. See id., 32-33. This court disagreed, concluding that, because the claimant could only make a claim against the $25,000 per person limit of the tortfeasor’s policy, the per person limit was the only limit available to the claimant. Id., 34. Thus, this court stated in Coon that “it is consistent with our earlier interpretation of § 38a-336 to conclude that the total of the per person limit is the amount of liability insurance available to the claimant, i.e., $25,000.” Id. Our resolution of the underinsured motorist issue raised by Coon was dictated by the fact that, in that case, the tortfeasor had a split limit liability policy while the policy under which the claimant sought to recover had single limit underinsured motorist coverage. See id., 31-32. In this case, by contrast, the plaintiffs underin-sured motorist policy has split limits whereas the tort-feasor’s policy is a single limit policy.

Indeed, the result that this court reached in Coon and the analysis we employed therein are fully consistent with the interpretation of § 38a-336 that the plaintiff urges. In Coon, the policy under which the claimant sought to recover had single limit underinsured motorist coverage. Id., 31. That policy is the equivalent of a split limit policy with limits of $50,000 per person and $50,000 per accident. The tortfeasor in Coon had a split limit policy of $25,000 per person and $50,000 per accident. Id., 31-32. A comparison of the limits of the policy under which the claimant sought to recover with the limits of the tortfeasor’s policy reveals that, although the per accident limits of the two policies were the same, the tortfeasor’s per person liability limit was less than the per person underinsured motorist limit of the policy under which the claimant sought to recover. Thus, as we concluded in Coon, the tortfeasor in that case was underinsured. Id., 33.

The majority also suggests that the plaintiffs interpretation of § 38a-336 is improper because it is founded not upon the statutory language, but, rather, upon the fact that multiple claimants exhausted the liability limits of the tortfeasor’s policy. See Florestal v. Government Employees Ins. Co., 236 Conn. 299, 306, 673 A.2d 474 (1996) (exhaustion of policy limits due to multiple claims does not alter effect of statute); American Motorists Ins. Co. v. Gould, supra, 213 Conn. 633 (same). I disagree. The existence of multiple claimants does not affect the determination of whether the tortfea-sor was underinsured. Rather, the fact that multiple claimants exist is relevant only because the plaintiff would have had no need to seek recovery under his underinsured motorist policy but for the exhaustion of the tortfeasor’s per person policy limits due to the existence of such additional claimants. Although the plaintiff can never recover more than the $100,000 per person limit of his underinsured motorist policy, he is entitled to the same protection that he would have had if the tortfeasor’s per accident limit had been equal to that component of his underinsured motorist policy.

Finally, the defendant contends that the relief sought by the plaintiff in this case was anticipated by the legislature when it provided for the option of underinsured motorist conversion coverage in 1994. See General Statutes § 38a-336a; see also Florestal v. Government Employees Ins. Co., supra, 236 Conn. 307-308 (“This option, which is available for an additional premium to consumers who wish to purchase it in lieu of standard underinsured motorist coverage under § 38a-336, provides enhanced protection to victims of underinsured motorists because, in contrast to coverage under § 38a-336, it is activated when ‘the sum of all payments received by or on behalf of the covered person from or on behalf of the tortfeasor are less than the fair, just and reasonable damages of the covered person.’ . . . General Statutes § 38a-336a [e].”). There is nothing in the text of this state’s underinsured motorist conversion coverage statute, in its legislative history, or in the reason for its enactment, to support the defendant’s claim that, in light of the insurance policies in effect in this case, the tortfeasor’s vehicle was not underinsured within the meaning of § 38a-336. Consequently, the defendant has failed to demonstrate that the existence of underinsured motorist conversion coverage has a bearing on our determination of the issue raised by this case.

In my view, therefore, the plaintiff, not the defendant, is entitled to summary judgment on the issue of the availability of coverage under the underinsured motorist policy issued to the plaintiff by the defendant.

Accordingly, I respectfully dissent.

MCDONALD, J.,

with whom BERDON, J., joins, dissenting. I agree with the dissent of Justice Palmer. The majority concludes that, where there are multiple claimants, a policy that offers a total of $100,000 to them collectively “gives the same resource” to each one of the claimants as a policy making available collectively to those multiple claimants a total of $300,000 with each one limited to $100,000. To state this proposition is to refute it. There is an undoubted and easily understood real, practical and economic advantage in the $100,000/ $300,000 policy to each one of the claimants over the $100,000 single limit policy.

       General Statutes § 38a-336 provides in relevant part: “(a) (1) Each automobile liability insurance policy shall provide insurance, herein called uninsured and underinsured motorist coverage . . . with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112 .... Each insurer licensed to write automobile liability insurance in this state shall provide uninsured and underinsured motorists coverage with limits requested by any named insured upon payment of the appropriate premium ....
      “(b) An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured and underinsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured and underinsured motorist coverage, exceed the limits of the insured’s uninsured and underinsured motorist coverage. The limitation on the total amount of recovery from all policies shall not apply to underinsured motorist conversion coverage purchased pursuant to section 38a-336a. . . .
      “(e) For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subsection (b) of this section. . . .”
      We recognize that at the time of the accident in 1994, General Statutes (Rev. to 1993) § 38a-336, as amended by Public Acts 1993, No. 93-77, § 2, Public Acts 1993, No. 93-297, § 1, and Public Acts, Spec. Sess., May 25,1994, No. 94-1, §§35 and 36, was in effect. With the exception of Public Acts 1998, No. 98-189, §§ 1 and 2, which effected minor technical changes not relevant to this appeal, the statute has remained substantively the same. For the sake of clarity, references to § 38a-336 in this opinion are to the current revision of the statute.

       The plaintiffs insurance policy describes split limits as follows: “The limits of liability shown in the Declarations for ‘each person’ is the most we will pay to any one person for all damages resulting from any one occurrence.
      “Subject to this limit for ‘each person,’ the limits shown in the Declarations for ‘each occurrence’ is the most we will pay for all damages resulting from any one occurrence. This is the most we will pay regardless of the number of:
      “1. covered persons; or
      “2. claims made; or
      “3. vehicles or premiums shown in the Declarations; or
      “4. vehicles involved in the accident.”

        In D'Arcangelo v. Hartford Casualty Ins. Co., supra, 44 Conn. App. 378-79, the plaintiff had uninsured/underinsured motorist coverage of $100,000 per person and $300,000 per accident, which, when stacked for the plaintiffs three covered vehicles, totaled $300,000 per person and $900,000 per accident. The tortfeasor had a single limit policy of $500,000. The court compared the tortfeasor’s $500,000 single limit policy to the plaintiff s $300,000 per person limit, and concluded that the tortfeasor’s vehicle was not underinsured. Id., 380-81.

       We acknowledge that, as Justice Palmer’s dissent notes, in other contexts we have described our uninsured and underinsured motorist coverage statute as having a broad and remedial purpose. See Williams v. State Farm Mutual Automobile Ins. Co., 229 Conn. 359, 373, 641 A.2d 783 (1994) (“uninsured motorist statute is remedial in nature”); Streitweiser v. Middlesex

        Mutual Assurance Co., 219 Conn. 371, 377, 593 A.2d 498 (1991) (“strong public policy favoring uninsured motorist coverage”); American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 197, 530 A.2d 171 (1987) (“remedial purpose of underinsured motorist coverage to protect and make whole a person injured at the hands of an uninsuredAmderinsured motorist'’ [emphasis in original]); Harvey v. Travelers Indemnity Co., 188 Conn. 245, 250-51, 449 A.2d 157 (1982) (“it is the intent of the legislature to provide broad coverage to victims of uninsured motorist s”). In none of those cases, however, did we employ that description in order to decide whether a vehicle met the statutory definition of an underinsured motor vehicle. Furthermore, such a description cannot override the purpose of the statute to put the injured party in no better or worse a position than he would have been in had the tortfeasor carried adequate insurance. Thus, the description of the statute as remedial cannot convert an adequately insured motor vehicle into an underinsured motor vehicle.

       The dissent of Justice Palmer asserts that “[u]nder the per accident component of the plaintiffs underinsured motorist coverage, he is protected against losses of up to $100,000 in the event of an accident where, based on the existence of multiple claimants, the tortfeasor’s liability policy is exhausted before the plaintiff has recovered $100,000 in compensation under the tortfeasor’s policy." (Emphasis added.) This assertion, which is the foundation of the dissent’s conclusion, is fundamentally flawed.
      First, there is no basis for the assertion in the undisputed meaning of split coverage, namely, $ 100,000 per person and $300,000 per accident. One cannot extrapolate from such coverage — except by fiat — the notion that it has anything to do with what the insured may actually recover from the tortfeasor’s liability carrier, whether before or after exhaustion of the tortfea-sor’s liability coverage. Thus, the dissent would read out of the $300,000 per accident coverage the underlying $100,000 per person limit.
      Second, the dissent’s assertion begs the question posed by this case. That question is whether the undisputed meaning of such split coverage — namely, each person potentially has available to him no more than $100,000, with a total potential availability to all persons of $300,000 for any one accident— affords underinsured motorist coverage where the tortfeasor’s liability policy has a total potential availability of $100,000. By assuming, without any basis, that the split coverage has such meaning that the dissent attributes to it, the dissent simply assumes away that question.
      Third, the only basis for its assertion that the dissent offers is “to treat the tortfeasor's single limit policy as its split limit equivalent, in this case $100,000 per person and $100,000 per accident.” (Emphasis added.) As the dissent must concede, however, such a conception amounts to a single limit liability policy of $100,000, because under both — a single limit $100,000 policy and the dissent’s hypothetical policy' — there is a total potential availability of $100,000 of liability coverage, irrespective of whether there is one or more than one liability claimant. Moreover, as the dissent also must concede, such a policy has no basis in the real world of insurance policies. At the least, none has been brought to our attention. Thus, notwithstanding the authorities from other jurisdictions on which the dissent relies, it is a flawed method of abdication to decide a question of statutory interpretation by hypothesizing a factual situation that (1) simply mirrors the basic factual situation presenting the question in the case, and (2) has no basis in reality.

       For purposes of brevity, this opinion hereinafter refers to uninsured and underinsured motorist coverage, policies or statutes as underinsured motorist coverage, policies or statutes. No distinction between “uninsured” and “underinsured” is intended.

       Although the $100,000 per person limit of the tortfeasor’s policy is equivalent to the $100,000 per person limit of the plaintiffs underinsured motorist policy, the tortfeasor’s per accident limit of $100,000 is less than the plaintiffs per accident limit, of $300,000. The tortfeasor’s vehicle, therefore, is under-insured.

       Moreover, the reasoning of the Appellate Court in D\'Arcangelo has been questioned. For example, the authors of the authoritative commentary on Connecticut’s uninsured and underinsured motorist law have observed: “[T]he question arises whether the decision [in DArcangelo] is consistent with the general philosophy that [underinsured motorist] coverage should be available to protect an injured party to the same extent that [that] individual would have been protected had the tortfeasor possessed as much in liability coverage as the claimant possesses in uninsured/underinsured motorist coverage. See [American Motorist Ins. Co. v. Gould, supra, 213 Conn. 631].” J. Berk & M. Jainchill, Connecticut Law of Uninsured and Underinsured Motorist Coverage (Sup. IV 1997) § 1.6.2, p. S24. Moreover, the trial court in this case, although bound by the Appellate Court’s holding in DArcangelo, indicated that it was “troubled” by the reasoning of the court, in DArcangelo in light of the fundamental purpose of our underinsured motorist statutes.

       General Statutes § 38a-336a provides in relevant part: “(a) Each insurer licensed to write automobile liability insurance in this state shall offer, for an additional premium, underinsured motorist conversion coverage with limits in accordance with section 38a-336. The purchase of such underinsured motorist conversion coverage shall be in lieu of underinsured motorist coverage pursuant to section 38a-336. . . .
      “(c) Each insurer shall be obligated to pay to the insured, up to the limits of the policy’s underinsured motorist conversion coverage, after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements. If the insured purchases such underinsured motorist conversion coverage, then in no event shall the underinsured motorist coverage be reduced on account of any payment by or on behalf of the tortfeasor or by any third party. . . .
      “(e) For purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of all payments received by or on behalf of the covered person from or on behalf of the tortfeasor are less than the fair, just and reasonable damages of the covered person. . . .”


source: Caselaw Access Project

author: NORCOTT, J.

license: Public Domain

text:
    PAUL D. POWERS v. EDWARD OLSON, JR.
    (SC 16043)
    Borden, Norcott, Katz, Sullivan and Peters, Js.
    Argued September 28, 1999
    officially released January 11, 2000

      Michael D. O’Connell, with whom, on the brief, was Julia B. Morris, for the appellant (plaintiff).

      Jon C. Leary, for the appellee (defendant).
   Opinion

NORCOTT, J.

The dispositive issue in this appeal is whether the trial court improperly determined that the plaintiff had actual and constructive notice of the slope rights affecting his property. We conclude that the trial court improperly determined that the plaintiff, Paul D. Powers, had such notice of the slope rights affecting the property in question. We further conclude that by granting permission to the defendant, Edward Olson, Jr., to enter the plaintiffs property for purposes of exercising slope rights, the trial court improperly adjudicated rights that rightfully can be exercised only by the town of Rocky Hill (town), which was not a party to this action, and has not at any time asserted any claims against either the plaintiff or the defendant. In so doing, we conclude that the trial court improperly cloaked the defendant with rights that could belong only to the town, which have not been properly raised in the present case. We also conclude that the trial court properly found that the defendant did not possess any reservation of slope rights to the plaintiffs property and that the defendant properly was found to be responsible for damage to the plaintiffs trees and property. We further conclude that the trial court improperly granted the defendant permission to enter the plaintiffs property in order further to comply with the subdivision plan. Accordingly, we reverse the judgment of the trial court in part and affirm the judgment of the trial court in part.

The plaintiff brought this action against the defendant, the owner and developer of Burtonwood Estates in the town. The plaintiff sought to enjoin the defendant from further excavating the plaintiffs property and to require the defendant to provide lateral support for the trees damaged by his earlier excavation of the property. The trial court, Hon. Jerry Wagner, judge trial referee, determined that the defendant had the right to enter the plaintiffs property for the purpose of fulfilling the defendant’s obligations under the property’s subdivision plan, but that the defendant was required to provide lateral support for the trees on the plaintiffs property that were damaged as a result of the ensuing excavation. Accordingly, the trial court determined that the defendant had not retained slope rights to the property, but granted the defendant permission to enter the property to satisfy his obligations to the town. Furthermore, the trial court also determined that the plaintiff had suffered irreparable harm as a result of the defendant’s actions and granted the plaintiff limited injunc-tive relief to remedy that harm.

The plaintiff appealed from the judgment of the trial court to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

On appeal, the plaintiff claims that the trial court improperly imposed slope rights on his property despite its specific finding that the defendant had reserved no slope rights in the property. The plaintiff further claims that the trial court, by granting permission to the defendant to enter the plaintiffs property and to regrade the area adjacent to Cobey Road, which runs along the westerly side of the his property, effectively adjudicated rights of the town, which, as noted previously, was not a party to this action and had not asserted any such claims against the defendant or the plaintiff. Furthermore, the plaintiff claims that the trial court’s issuance of a mandatory injunction compelling the defendant to erect a barrier sufficient to protect the trees on the plaintiffs property is inconsistent with the trial court’s determination that the defendant had the right to enter the plaintiffs property to comply with other requirements of the recorded subdivision plan. We agree with the plaintiff and, therefore, we reverse in part the judgment of the trial court.

The following material facts are not disputed. On October 10, 1990, the plaintiff entered into a written sales agreement with Mark Olson, the defendant’s son, to purchase lot no. 7 in the Burtonwood Estates subdivision. The sales agreement contained the following language: “SLOPE RIGHTS. Seller reserves the right to grade and slope said premises and relocate property line in connection with the reconstruction and relocation of Cobey Road, provided, however, said Lot #7 shall conform to the zoning regulations of the Town of Rocky Hill.” Prior to the closing, the defendant, who was acting as his son’s attorney for this transaction, forwarded a draft deed to the plaintiffs attorney. The draft deed included the reservation of slope rights. At that time, however, the plaintiff objected to the reservation of slope rights. The parties then agreed that neither the defendant nor his son would reserve any slope rights in the plaintiffs property.

At trial, the defendant testified that he specifically had authorized the removal of the reservation of slope rights from the deeds when lot no. 7 was conveyed to the plaintiff. Accordingly, the warranty deeds conveying title of the lot and the newly constructed house on the lot to the plaintiff contained no reservation of slope rights. Each deed described lot no. 7 by appropriate bounding distances and specifically incorporated by reference a map or plan entitled: “ ‘Subdivision Plan: Burtonwood Estates Property of Jean W. Olson, Cobey Road & New Britain Avenue, Rocky Hill, Connecticut . . . Scale 1”=40’ Date August, 1988 . . . Drawing No. 1 Revision No. 1 10-26 Staff Comments J.R. No. 2 01-06-89 Lots 5, 7, 8, No. 3 04-18-89 San. Esmt Data, House #s’ . . . .” Each deed also contained the following language: “Said premises are conveyed subject to any ordinance, municipal regulations, public or private law . . . and to a sewer easement to The Metropolitan District as shown on said map.”

At trial, the subdivision plan of Burtonwood Estates was admitted as a full exhibit. The plan consisted of six pages, approved by the town and recorded in the land records on pages 1900A through 1900F, on July 10,1989. Because only the first page of this exhibit was labeled “Subdivision Plan,” only that page corresponded to the designation cited in the warranty deeds. The other pages of the exhibit reflected drawing numbers and dates other than those specifically referred to in the warranty deeds.

Pursuant to the map, lot no. 7 is bounded westerly by Cobey Road for a distance of 169.12 feet. The plan indicates the presence of a grove of trees, including the two large sugar maple trees that are the subject of the present case, located in the northwest corner of the lot, situated on a sharply sloping bluff above the present road level of Cobey Road. At the time of the closing, the road had not been relocated, and the sidewalks had not been installed.

In April, 1996, a contractor hired by the defendant excavated portions of Cobey Road near the northwest corner of the plaintiffs lot. The plaintiff claimed that the defendant had trespassed on his property and, accordingly, had no right to excavate the property. The defendant claimed, to the contrary, that the excavation was a reasonable exercise of his responsibility as a developer to the town, and that pursuant to General Statutes § 7-31, he had the right to enter the plaintiffs property for purposes of sloping the property line.

The trial court concluded that the plaintiff had actual and constructive notice of reserved slope rights by reason of the aforementioned subdivision plan, despite the fact that no such reservation appeared in the deeds. Nonetheless, the court also concluded that the harm to the plaintiffs trees was “irreparable and limited injunctive relief is appropriate because the harm is actual and imminent.”

In this appeal, we address the following substantive issues: (1) Did the plaintiff have actual notice of a reservation of slope rights because of the terms of the contract of sale?; (2) Did the plaintiff have constructive notice of such a reservation because of the deeds’ reference to a subdivision plan?; and (3) Did the plaintiff have constructive notice of such a reservation because the recorded subdivision plan included the town’s requirements for road construction and property development?

As a threshold matter, we set forth the standard by which we review the trial court’s rulings. “An appellate court’s review of a trial court decision is circumscribed by the appropriate standard of review. As we have often stated: The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. . . . SLI International Corp. v. Crystal, 236 Conn. 156, 163, 671 A.2d 813 (1996).” (Internal quotation marks omitted.) Torres v. Waterbury, 249 Conn. 110, 118-19, 733 A.2d 817 (1999). “It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. Kimberly-Clark Corporation v. Dubno, 204 Conn. 137, 153, 527 A.2d 679 (1987). The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony he reasonably believes to be credible. . . . Transportation Plaza Associates v. Powers, 203 Conn. 364, 378, 525 A.2d 68 (1987). On appeal, we do not retry the facts or pass on the credibility of witnesses. Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 473, 542 A.2d 692 (1988). . . . Newbury Commons Ltd. Partnership v. Stamford, [226 Conn. 92, 99, 626 A.2d 1292 (1993)].” (Internal quotation marks omitted.) Torres v. Waterbury, supra, 123.

With these basic principles in mind, we consider each of the claims appropriately before us on appeal. We conclude that the trial court’s rulings that the plaintiff had actual and constructive notice of the reservation of slope rights, and that the defendant was liable for the damage to the plaintiffs trees, are legally and logically inconsistent with the facts. We conclude that the plaintiff did not have actual or constructive notice of the reservation of slope rights, and that the trial court improperly cloaked the defendant with rights belonging to the town, an entity that was not a party to this action.

I

ACTUAL NOTICE

In concluding that the trial court improperly determined that the plaintiff had actual and constructive notice of the slope rights affecting his lot, we first note that the conveyance instruments did not expressly contain any reservation of slope rights. Indeed, the removal of the reservation of slope rights from the deeds was a specific requirement for the plaintiffs agreement to buy the lot.

It is a well established principle that “[a]n instrument conveying an interest in land conveys only that which is specifically expressed in the document.” Alemany v. Commissioner of Transportation, 215 Conn. 437, 442, 576 A.2d 503 (1990); Connecticut Light & Power Co. v. Holson Co., 185 Conn. 436, 441, 440 A.2d 935 (1981). Furthermore, although the sales contract contained a reservation of slope rights, it is axiomatic that a deed supersedes the underlying contract. See Mongillo v. Commissioner of Transportation, 214 Conn. 225, 231, 571 A.2d 112 (1990) (“under the principle of merger by deed, the terms of the deed would automatically replace and supersede the terms of the underlying contract, absent a reservation of collateral rights”); Knight v. Breckheimer, 3 Conn. App. 487, 490, 489 A.2d 1066 (1985) (“the general rule is that acceptance of a deed in pursuance of articles of agreement for the conveyance of land is prima facie the completion of the contract; and all stipulations contained therein . . . are merged in the deed although omitted therefrom” [internal quotation marks omitted]).

In the present case, the defendant testified and the trial court determined that he specifically had authorized the removal of the reservation of slope rights from the deeds. The defendant further testified, however, that although he had explicitly so agreed, he privately assumed that he still would have the right to slope the property pursuant to § 7-31. It is undisputed that the defendant did not reveal this assumption to the plaintiff at any point during the course of the transaction. On this record, there is no basis to support the trial court’s finding that the plaintiff had actual notice of a reservation of slope rights.

II

CONSTRUCTIVE NOTICE FROM DEED REFERENCE TO SUBDIVISION MAP

The defendant also argues that, because the subdivision plan of Burtonwood Estates, as recorded with the town, consists of six pages of maps, the plaintiff had constructive notice of the slope rights reserved pursuant to all of these maps. The plaintiff argues, however, that the deed executed by the defendant and accepted by the plaintiff, specifically incorporated by reference only one of the maps contained in the subdivision plan, namely, the map that relocates the route of Cobey Road, thereby ehminating the proposed road’s encroachment upon his property. In fact, the defendant himself testified at trial that the map revealed only that the road did not encroach upon the plaintiffs property. The plaintiff maintains that he had constructive notice only of the information contained on the first page of the subdivision plan. We agree with the plaintiff.

Both the plaintiff and the defendant rely upon Kul-macz v. Milas, 108 Conn. 538, 144 A. 32 (1928), to support their respective arguments. In Kulmacz v. Milas, supra, 541-42, this court held that a purchaser has constructive notice only of a map specifically referenced in a deed, not of a map merely recorded and filed in the office of the town clerk. “The map in question was filed in the town clerk’s office . . . and we assume that it was properly entered in the special index of maps. That would not, however, be sufficient of itself to charge the plaintiff with notice of its contents.” Id., 541. We concluded that “the express provision in the statute that such a map shall ‘be deemed part of the deeds referring thereto,’ indicates clearly a legislative intent that it would not be notice of its contents except where the terms of recorded deeds pointed the way to it. . . .” Id., 541-42. Further, we determined that “one searching title to land is not bound to search the records at large, but only is bound with such facts as appear in the chain of title to the particular lot in question.” Id., 542. In accordance with this precedent, we conclude that, in the present case, because the only map referenced in the deeds refers to the first page of the subdivision plan, the plaintiff was on notice only as to the provisions contained therein: conspicuously absent was the notice of any reservation of slope rights by the defendant. See Hawley v. McCabe, 117 Conn. 558, 563, 169 A. 192 (1933) (“[The] [p]laintiff contends that it is the duty of one searching a title to go beyond the records in the chain of title, and by historical research acquaint himself with the situation at the time each deed was made. This is too broad a statement of the duty of the title searcher.”).

Additionally, it is a well established principle that “[i]n construing a deed, a court must consider the language and terms of the instrument as a whole. . . . Our basic rule of construction is that recognition will be given to the expressed intention of the parties to a deed or other conveyance, and that it shall, if possible, be so construed as to effectuate the intent of the parties.” (Citations omitted; internal quotation marks omitted.) Hare v. McClellan, 234 Conn. 581, 593, 662 A.2d 1242 (1995). In the present case, the parties expressly removed the reservation of slope rights from the deeds. Indeed, the plaintiff testified that he would not have closed on the agreement with the reservation of slope rights intact, and the defendant testified that he removed the slope rights specifically in accordance with the plaintiffs wishes. The intent of the parties, therefore, is consistent with our precedent in Kulmacz. We will not look beyond the intent manifested by the parties and, specifically, the intent so represented by virtue of the map chosen to be referred to in the deeds, in order to determine what the instrument of conveyance truly conveys.

Ill

CONSTRUCTIVE NOTICE FROM RECORDED SUBDIVISION PLAN

The defendant also argues that the entire subdivision plan, as recorded with the town, provided the plaintiff with constructive notice of the subdivision requirements set forth by the town. Accordingly, the defendant argues, the trial court properly held that the defendant retained the right to enter the plaintiffs property for purposes of sloping the lot as required by the town. We disagree with the defendant.

The defendant relies upon Stankiewicz v. Miami Beach Assn., Inc., 191 Conn. 165, 171, 464 A.2d 26 (1983), for the proposition that “[a] grantee who takes under a deed referring to a map thus cannot justifiably look only to the map, but must consider it in conjunction with other deeds and documents comprising the chain of title.” The defendant’s reliance upon Stankiewicz is misplaced. In Stankiewicz, the court found that “[w]hen a conveyance describes the conveyed property by reference to a map on which streets are shown, an implied easement over the streets exists by law, if it exists at all, only if the conveyor in fact owns the streets.” Id., 170. In that case, the defendant resort association was allowed to obstruct roads that had appeared on the map referred to in the plaintiff property owners’ deed. The original grantor, however, had first conveyed the property containing the streets in question to the defendant, and then, nine years later, had conveyed the adjacent lot to the plaintiffs’ predecessors in title. Id., 167. Thus, the plaintiffs did not have an implied easement in the streets contained in the defendant’s lot. Id., 170. The deed conveyed to the plaintiffs by the grantor erroneously referred to the identical map referred to in the deed conveyed to the defendant. Id., 168. The grantor, nine years previously, already had conveyed the property containing the streets to the defendant. Id., 167. “It is fundamental that a grantor cannot effectively convey a greater title than he possesses.” Id., 170. Because the grantor already had conveyed to the defendant all his interest in the property containing the street in question, the plaintiff had no rights to the property despite the map recorded and referred to in the deed.

Stankiewicz is distinguishable from the present case. In the present case, the defendant is the original grantor of the property and has conveyed the lot in question only to the plaintiff. The town does not own the rights to the plaintiffs lot. If there is a question as to the town’s rights regarding the subdivision as a whole, that is an issue for the town to pursue. The town, however, has not asserted any rights against either the defendant or the plaintiff. Indeed, the town engineer, James Sollmi, testified at trial that the town did not assert such rights and would do so only if and when the town council determined to exercise rights of eminent domain to obtain them. Although there is evidence that the town planning and zoning commission had imposed road requirements upon the defendant as developer, those requirements do not necessarily bind the plaintiff. Sol-lmi also testified that because the subdivision was bonded, the town could pursue an action against the defendant for failure to comply with the subdivision requirements. Because the town is not a party to the present action, the defendant is precluded from asserting claims against the plaintiff that could only exist — if they even do exist — on behalf of the non-party town.

We conclude that there was neither actual nor constructive notice of slope rights reserved to the defendant in the deeds to the property. We have determined that the trial court improperly concluded that the defendant was authorized to act on behalf of the town to enter the plaintiffs property in order to grade and slope the property in question pursuant to the subdivision plan. Accordingly, we affirm that portion of the trial court’s judgment that determined that there was no reservation of slope rights and that the defendant was responsible for the damage to the plaintiffs trees and property. We reverse that portion of the trial court’s judgment that granted the defendant permission to enter the plaintiffs property in order to act on behalf of the town. Because we conclude that the trial court’s rulings were improper, we need not reach the issue as to whether the defendant’s action constituted a taking of property without due process of law.

The judgment is reversed in part and affirmed in part and the case is remanded with direction to render judgment for the plaintiff in accordance with the preceding paragraph.

In this opinion the other justices concurred.

       The trial court rejected the plaintiffs claim for attorney’s fees and punitive damages under the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a etseq., and those issues are not before this court on appeal.

       The trial court’s order provides in relevant part: “The uncontradicted testimony of [the] defendant at trial was that he reluctantly removed the slope right reservation from the deeds of conveyance at [the] plaintiffs insistence because he could not afford to lose or postpone the sale of the premises to [the] plaintiff. The reservation of slope rights by the defendant would have protected him against any claim of damage to the trees or land of the plaintiff provided [the] defendant performed his excavations in a reasonably prudent manner. Intentional withdrawal of such reservation by omitting it from the deeds or other closing documents does not affect the right of the town or owners of lots on the subdivision with respect to the provisions set forth on the map. However, [the] defendant’s excavation following such withdrawal is a breach of an implied or quasi-contract between the plaintiff and [the] defendant and subjects the defendant to liability for damages sustained by [the] plaintiff to his trees or property. . . .
      “[The] [defendant should be compelled at his own cost to erect a sufficiently high barrier, with sufficient backfill of soil, to adequately support the trees on [the] plaintiffs land. Since a town road is involved, with a sewer basin already installed and future sidewalks envisioned, any remedy ordered by this court must be acceptable to the town. However, there is no reason to prevent the defendant or his agents from completing the relocation of Cobey Road or complying with all the other subdivision requirements including sewer basin or sidewalk installation providing such work is done with timely notice and reasonable care.
      “The harm to [the] plaintiffs trees is irreparable and limited injunctive relief is appropriate because the harm is actual and imminent. [R. Powell, Real Property (1997) § 702(3)]. Any mandatory injunction must be issued with caution, but one was issued in a slope rights case by Judge Nadeau in Franc v. Bethel Holding Co., Superior Court, judicial district of Danbury, [Docket No. CV880295669 (February 23, 1996)].
      “[The] [defendant is ordered to provide at his cost an adequate lateral support to the two trees on [the] plaintiffs land by means of a sufficiently high barrier made from concrete or other suitable materials and then backfill-ing the area behind the barrier to a reasonable depth in order to cover the tree roots all as may be approved by appropriate town of Rocky Hill authorities. [The] [defendant is permitted to enter temporarily and from time to time, with ten (10) days written notice to the plaintiff, so much of the westerly portion of lot no. 7 as may be necessary to carry out this order to comply with other requirements of the recorded subdivision plan.” (Citations omitted.)

        There were originally two separate deeds of conveyance: one from the defendant to Mark Olson; and one from Mark Olson to the plaintiff.

       General Statutes § 7-31 provides in relevant part: “When any person having an interest in land has caused it to be surveyed and plotted or laid out into lots and projected highways, and a map made, which map shall bear the seal of the surveyor and a certification that it is substantially correct to the degree of accuracy shown thereon, and when such projected highways have been approved by the municipal authorities empowered to approve the layout of highways, the map may be received and placed on file in the office of the clerk of the town in which such land is situated and shall thereupon be deemed a part of the deeds referring thereto, and may be produced in court accordingly . . .

       The statute in question in Kulmacz was General Statutes (1918 Rev.) § 319, which was repealed by Public Acts 1951, No. 7, § 2, and replaced with similar language that eventually became § 7-31. The language, “shall thereupon be deemed apart of the deeds referring thereto,” has not changed.

       It must be noted that this court, in Bolan v. Avalon Farms Property Owners Assn., Inc., 250 Conn. 135, 144, 735 A.2d 798 (1999), abandoned the unity of title doctrine, citing Stankiewicz as approving that doctrine. The defendant in the present case, however, does not rely upon Stankiewicz for the unity of title doctrine, which applied exclusively to easements. This court has not abandoned the rule for which Stankiewicz continues to stand: one cannot convey greater title than that which one possesses. Stankiewicz v. Miami Beach Assn., Inc., supra, 191 Conn. 170.

       The lot in question was described as follows: “The defendant association owns the fee in Liberty Street and in those sections of Columbus and Washington Avenues north of Liberty Street. The portions of Columbus and Washington Avenues south of Liberty Street and which abut the plaintiffs’ property are public highways.” Stankiewicz v. Miami Beach Assn., Inc., supra, 191 Conn. 166.


author: PER CURIAM.

text:
    ALGONQUIN STEEL TECHNOLOGIES, INC. v. CONNECTICUT COMPRESSED GAS, INC.
    (SC 16101)
    Norcott, Katz, Palmer, Peters and Callahan, Js.
    Argued November 30, 1999
    officially released January 25, 2000

      Theodore R. Tyma, with whom was Stephen F. Donahue, for the appellant (defendant).

      Christopher W. Huck, for the appellee (plaintiff).
   Opinion

PER CURIAM.

After examining the record on appeal and considering the briefs and oral arguments of the parties, we have determined that the appeal in this case should be dismissed on the ground that certification was improvidently granted.

The appeal is dismissed.

       We granted 1he defendant’s petition for certification to appeal from the Appellate Court limited to the following issue: “Did the Appellate Court properly dismiss the defendant’s appeal?” Algonquin Steel Technologies, Inc. v. Connecticut Compressed Gas, Inc., 248 Conn. 919, 734 A.2d 565 (1999).


text:
    BERTHA N. KANE v. AMERICAN INSURANCE COMPANY
    (SC 16104)
    McDonald, C. J., and Borden, Palmer, Callahan and Anrigemma, Js.
    Argued December 3, 1999
    officially released January 25, 2000

      Kevin P. Thornton, with whom, on the brief, was Scott J. Sandler, for the appellant (plaintiff).

      Royce L. Vehslage, for the appellee (defendant).
   Opinion

PER CURIAM.

After sustaining injuries in an alleged automobile accident, the plaintiff, Bertha N. Kane, brought this action against the defendant, American Insurance Company, to recover pursuant to the uninsured motorist provision of an insurance policy that she had purchased from that company. The defendant claimed that the policy had expired and thus terminated before the date of the accident, and that the plaintiff had failed to renew its terms. The plaintiff claimed that the policy did not terminate because she had not received a termination notice from the defendant. At the request of the parties, the trial court reserved a question, pursuant to Practice Book § 73-1, asking the Appellate Court to consider whether the defendant was required, pursuant to General Statutes (Rev. to 1995) § 38a-343 (a), to issue a cancellation notice before terminating the plaintiffs automobile insurance policy. The Appellate Court determined that, because the plaintiff had not renewed the policy pursuant to General Statutes § 38a-341, no cancellation notice was required. Kane v. American Ins. Co., 52 Conn. App. 497, 503, 725 A.2d 1000 (1999). We granted the plaintiffs petition for certification on this issue. Kane v. American Ins. Co., 249 Conn. 902, 732 A.2d 776 (1999).

Having reviewed the briefs, the record and the arguments of the parties, we conclude that the judgment of the Appellate Court should be affirmed. In its thorough and thoughtful opinion, the Appellate Court properly resolved the issue on which we granted certification.

The judgment of the Appellate Court is affirmed.

       Practice Book § 73-1 provides in relevant part: “(a) Any reservation shall be taken to the supreme court or to the appellate court from those cases in which an appeal could have been taken directly to the supreme court, or to the appellate court, respectively, had judgment been rendered. . . .”

       General Statutes (Rev. to 1995) § 38a-343 (a) provides in relevant part: “No notice of cancellation of policy . . . may be effective unless sent, by registered or certified mail or by mail evidenced by a certificate of mailing, or delivered by the insurer to the named insured at least forty-five days before the effective date of cancellation . . . .”

       General Statutes § 38a-341 provides in relevant part: “(2) ‘Renewal’ or ‘to renew’ means the issuance and delivery by an insurer of a policy replacing at the end of the policy period a policy previously issued and delivered by the same insurer, or the issuance and delivery of a certificate or notice extending the term of the policy beyond its policy period or term. ...”


author: CALLAHAN, J.

text:
    OFFICE OF CONSUMER COUNSEL v. DEPARTMENT OF PUBLIC UTILITY CONTROL ET AL.
    (SC 16106)
    Borden, Norcott, Palmer, Sullivan and Callahan, Js.
    Argued November 2, 1999
    officially released January 25, 2000

      Bruce C. Johnson, with whom, on the brief, was Guy R. Mazza, for the appellant (plaintiff).

      Roberts. Golden, Jr., assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (named defendant).

      Frederic L. Klein, with whom was Kenneth H. Eagle, for the appellee (defendant Connecticut Light and Power Company).
   Opinion

CALLAHAN, J.

This is an appeal from the judgment of the trial court dismissing the plaintiffs administrative appeal from an interim rate determination of the named defendant, the department of public utility control (department). The department’s decision that is the subject of the present appeal reduced electricity rates through a rate base reduction and amortization of regulatory assets. The outcome of this appeal hinges upon the interpretation of General Statutes § 16-19 (g), the interim rate decrease statute. The plaintiff, the office of consumer counsel, claims on appeal that the trial court improperly: (1) substituted its judgment for that of the department when it determined that accelerating amortization of regulatory assets directly benefits ratepayers; (2) concluded as a matter oflaw that the interim rate decrease statute does not require a cash rate reduction in the absence of a showing of direct benefit to ratepayers; and (3) permitted amortization of regulatory assets instead of requiring an actual cash decrease in rates as mandated by statute. We disagree and we therefore affirm the judgment of the trial court.

The defendant Connecticut Light and Power Company (power company) is a public utility company regulated by the department. Pursuant to its statutorily mandated duty under General Statutes § 16-19a, the department conducted a periodic review of the power company in 1997. The periodic review revealed that the power company would likely have substantial oveream-ings. The department, therefore, instituted a two-phase process. The first phase was an interim rate decrease hearing from which a decision was issued on February 25,1998. The second phase consisted of a full rate case, which was concluded on February 5, 1999. The final result of the full rate case is not at issue. In this appeal, only the result of the interim rate decrease hearing is at issue.

The interim rate decrease procedure, which was the procedure undertaken by the department, is set out in § 16-19 (g). Section 16-19 (g) requires the department to conduct a hearing on the need for an interim rate decrease when certain triggering events occur. The impetus for a hearing in this case was the department’s finding at the periodic review that the power company would be overearning by at least $141 million. “At the completion of such hearing, the department may order an interim rate decrease if it finds that such return on equity or rates exceed a reasonable rate of return or are more than just, reasonable and adequate as determined by the department. Any such interim rate decrease shall be subject to a customer surcharge if the interim rates collected by the company are less than the rates finally approved by the department or fixed at the conclusion of any appeal taken as a result of any finding by the department. Such surcharge shall be assessed against customers in such amounts and by such procedure as ordered by the department.” General Statutes § 16-19 (g).

Pursuant to its mandate under General Statutes § 16-2a, the plaintiff participated in the interim rate decrease hearing. Among the department’s considerations at the hearing was the “tenuous” financial condition of the power company brought about by its nuclear operations that had cost it more than one billion dollars, which the department had not permitted the power company to collect from its ratepayers. At the close of the interim rate decrease hearing, the department allowed the power company to apply approximately $110.5 million of its projected overeamings toward accelerated amortization of certain regulatory assets as part of an interim rate decrease. The department also, however, deleted approximately $30.5 million from the rate base that represented Millstone Unit I, resulting in a 1.4 percent cash rate reduction. The plaintiff objected only to the $110.5 million of accelerated amortization. This appeal followed.

I

As a preliminary matter, we set forth our standard of review. “The standard of review of an agency decision is well established. Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purposes. . . . [A]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts. . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . Furthermore, when a state agency’s determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference. . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law. . . . Connecticut Light & Power Co. v. Texas-Ohio Power, Inc., 243 Conn. 635, 642-43, 708 A.2d 202 (1998). . . . Assn. of Not-for-profit Providers for the Aging v. Dept. of Social Services, 244 Conn. 378, 389, 709 A.2d 1116 (1998).” (Internal quotation marks omitted.) Sweetman v. State Elections Enforcement Commission, 249 Conn. 296, 305-306, 732 A.2d 144 (1999). “If, however, a governmental agency’s ‘time-tested’ interpretation of a statute is reasonable, that interpretation should be accorded great weight by the courts. Anderson v. Ludgin, 175 Conn. 545, 555-56, 400 A.2d 712 (1978); New Haven v. United Illuminating Co., 168 Conn. 478, 493, 362 A.2d 785 (1975).” Texaco Refining & Marketing Co. v. Commissioner of Revenue Services, 202 Conn. 583, 599, 522 A.2d 771 (1987). Because this case presents an issue of law never before specifically considered by the department or by the courts, our review is plenary.

II

We believe that a determination of whether the statutory authority to reduce rates on an interim basis provided by § 16-19 (g) is mandatory or discretionary is determinative of this appeal. We conclude that the statutory direction of § 16-19 (g) is discretionary in nature.

We begin our analysis with the text of the statute. Section 16-19 (g) provides that “[a]t the completion of [the interim rate decrease] hearing, the department may order an interim rate decrease if it finds that such return on equity or rates exceed a reasonable rate of return or are more than just, reasonable and adequate as determined by the department. ...” (Emphasis added.) “It is well established that [i]f . . . language ... is clear and unambiguous, we will interpret it in accordance with its plain meaning absent a compelling reason to the contrary. . . . State v. Angell, 237 Conn. 321, 327, 677 A.2d 912 (1996).” (Internal quotation marks omitted.) Richard Riggio & Sons, Inc. v. Galiette, 46 Conn. App. 63, 66, 698 A.2d 336, cert. denied, 243 Conn. 920, 701 A.2d 343 (1997), cert. denied, 522 U.S. 1115, 118 S. Ct. 1050, 140 L. Ed.2d 113 (1998). The statutory language of § 16-19 (g) is clear: “the department may order an interim rate decrease . . . .” (Emphasis added.) “We have consistently held that ‘may’ is directory rather than mandatory. See, e.g., Seals v. Hickey, 186 Conn. 337, 345-47, 441 A.2d 604 (1982). The word ‘may,’ unless the context in which it is employed requires otherwise, ordinarily does not connote a command. Rather, the word generally imports permissive conduct and the conferral of discretion. See id., 345; Ridgeway v. Ridgeway, 180 Conn. 533, 540, 429 A.2d 801 (1980); see also A. Dubreuil & Sons, Inc. v. Lisbon, 215 Conn. 604, 611, 577 A.2d 709 (1990).” Commission on Human Rights & Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 349, 680 A.2d 1261 (1996) (statutory language of General Statutes § 46a-86 [b], providing that hearing officer, upon finding discriminatory employment practices, “may order the hiring or reinstatement of employees, with or without back pay,” is discretionary [emphasis added]).

The legislature’s use of the word “shall” in other contexts in § 16-19 (g) further bolsters our interpretation. “The use of the word ‘shall’ in conjunction with the word ‘may’ confirms that the legislature ‘acted with complete awareness of their different meanings’; Hartford Principals’ & Supervisors’ Assn. v. Shedd, 202 Conn. 492, 506, 522 A.2d 264 (1987); and that it intended the terms to have different meanings. Hinchliffe v. American Motors Corp., 184 Conn. 607, 613, 440 A.2d 810 (1981) (use of different terms within same sentence of statute ‘plainly’ implies different meanings intended), aff'd, 192 Conn. 252, 470 A.2d 1216 (1984); see also Plourde v. Liburdi, 207 Conn. 412, 416, 540 A.2d 1054 (1988).” Angelsea Productions, Inc. v. Commission on Human Rights & Opportunities, 236 Conn. 681, 694-95, 674 A.2d 1300 (1996). The plain language of the statute leaves to the discretion of the department whether to order any interim rate decrease at all.

We also may consider the regulatory purpose articulated in General Statutes § 16-19e. Section 16-19e (a) provides in relevant part that “[i]n the exercise of its powers under the provisions of this title, the Department of Public Utility Control shall examine and regulate . . . the establishment of the level and structure of rates in accordance with the following principles ... (4) that the level and structure of rates be sufficient, but no more than sufficient, to allow public service companies to cover their operating and capital costs, to attract needed capital and to maintain their financial integrity, and yet provide appropriate protection to the relevant public interests, both existing and foreseeable . . . .” The discretionary authority whether to decrease rates on an interim basis conforms to the legislative concern that both legitimate business concerns and the public interest be served.

Finally, we cannot ignore the statutory scheme pursuant to which an interim rate decrease is, as the term suggests, temporary. An interim rate decrease hearing is to be followed by a full rate determination hearing. The fact that an interim rate hearing results in only temporary ratemaking until more information is available at a subsequent full rate case hearing indicates that the legislature vested the department with discretion to determine whether an interim rate adjustment was necessary at all. The mandatory surcharge to be levied against ratepayers if the department later determines the interim rate decrease to have been excessive is further evidence of the discretion afforded the department because the department must temper its decision with the consideration of the potential future impact on ratepayers of a temporary rate decrease.

These factors lead to the conclusion that the interim rate decrease authority is discretionary. That determination disposes of the plaintiffs claims, because those claims rest upon the implicit premise that an interim rate decrease is mandatory when a utility is oveream-ing.

III

Each of the plaintiffs three specific claims implicitly presupposes that an interim rate reduction is mandatory when there are overearnings by a utility. Our conclusion that such rate reductions are, in fact, discretionary on an interim basis fatally undermines the plaintiffs position. Even if our conclusion were otherwise, however, we would reject the plaintiffs arguments.

A

The plaintiff claims that the trial court improperly concluded that accelerating the amortization of regulatory assets directly benefits ratepayers under § 16-19 (g). As we understand it, the plaintiffs argument is that the trial court improperly affirmed the decision of the department on the basis of a factual determination that the department did not make and that is not supported by the evidence in the record — namely, that the accelerated amortization directly benefits ratepayers under § 16-19 (g). We disagree with the plaintiff, because any such finding by the trial court, even if improper, was unnecessary and not dispositive.

Section 16-19 (g) requires that “the company . . . demonstrate to the satisfaction of the department that earning such a return on equity or collecting rates which are more than just, reasonable and adequate is directly beneficial to its customers. ...” (Emphasis added.)

The plaintiffs argument that the trial court improperly discerned a direct benefit to ratepayers miscon-straes the statute. The department is not required to justify its action pursuant to § 16-19 (g) as a direct benefit to ratepayers. The “direct benefit” language refers to the utility’s justification for retaining oveream-ings, not to the department’s discretionary authority to order a rate decrease. Moreover, the plaintiffs contention that accelerated amortization must directly benefit ratepayers incorrectly presupposes that the amortization of regulatory assets is not a rate decrease.

Even if we assume that it were necessary to prove that the amortization was directly beneficial to ratepayers, it appears that the amortization does benefit ratepayers by reducing future liabilities as discussed in part III B of this opinion.

B

The plaintiff next claims that the trial court improperly determined as a matter of law that the asset amortizations are actually rate reductions. The plaintiff asserts that the trial court improperly permitted the department to adjust overearnings by writing down the power company’s regulatory assets while allowing it to maintain the same cash flow position. The department and the power company, on the other hand, contend that rate reduction is not synonymous with and does not require reduced cash flow. We agree with the department and the power company.

The accelerated amortization of regulatory assets is a real and tangible rate reduction, albeit less apparent and immediate than a cash rate reduction. A regulatory asset is a liability of a utility’s ratepayers. Utility companies may incur large expenses in various ways — storm damages, installation of new facilities, increased taxes and so forth. These expenses, if passed immediately on to ratepayers, could create havoc. An immediate recovery of such expenses could cause sudden upward increases in rates, commonly termed “rate shock.” In order to avoid rate shock, commissions often will permit utility companies to recover their expenses from ratepayers on a deferred basis, listing the ratepayers’ debt as a “regulatory asset.” A regulatory asset is, therefore, a future debt of the ratepayers that can be passed on, together with interest, to the ratepayers. Accelerated amortization of a regulatory asset by the power company, therefore, necessarily reduces the future liability of its ratepayers. See L. Hyman, America’s Electric Utilities: Past, Present and Future (5th Ed. 1994) p. 243; National Conference of State Legislators, The States & Utility Regulation: Electric, Natural Gas, & Telecommunications: Collected Papers (1985).

For the plaintiff to maintain that there is no rate reduction in this instance is misleading. Certainly, there is no immediate cash rate reduction. Ratepayers continue to pay the same rate. Future rates, however, necessarily will be lower because of the write down of the regulatory assets that would constitute future liabilities.

C

The plaintiff finally claims that the trial court improperly determined as a matter of law that § 16-19 (g) does not require a cash rate reduction when the department fails to find a direct benefit to ratepayers. In other words, the plaintiff reads the statute to mandate an immediate cash rate reduction unless the department finds a direct benefit to ratepayers. We disagree.

There is no language in the statute to support this interpretation. Section 16-19 (g) simply provides that the department “may order an interim rate decrease . . . .” (Emphasis added.) Nothing in the text of the statute mandates that a decrease must be a cash reduction; or, as the trial court stated, nothing in the statute precludes a noncash rate adjustment. As discussed earlier, a noncash reduction can be a real and meaningful rate decrease.

Moreover, contrary to the plaintiffs assertion, the legislative history of § 16-19 does not support its position. The plaintiff essentially argues that because § lb-19 (d), the interim rate increase statute, allows cash rate increases to utilities, the legislature intended § lb-19 (g) to provide analogous relief to ratepayers and that, therefore, the legislators intended § 16-19 (g) to provide only cash rate decreases. The legislative history of § 16-19 (g), however, indicates only that the legislature, recognizing the existence of a mechanism whereby utilities could petition for and obtain an interim rate increase, sought to provide a mechanism whereby the department could order an interim rate decrease to benefit ratepayers. The legislative history provides no support for the further conclusion that such a decrease must be a cash reduction.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 16-19 (g) provides: “The department shall hold a special public hearing on the need for an interim rate decrease (1) when a public service company has, for six consecutive months, earned a return on equity which exceeds the return authorized by the department by at least one percentage point, (2) if it finds that any change in municipal, state or federal tax law creates a significant increase in a company’s rate of return, or (3) if it finds that a public service company may be collecting rates which are more than just, reasonable and adequate, as determined by the department, provided the department shall require appropriate notice of hearing to the company and its customers who would be affected by an interim rate decrease in such form as the department deems reasonable. At such hearing, the company shall be required to demonstrate to the satisfac-1ion of the department that earning such a return on equity or collecting rates which are more than just, reasonable and adequate is directly beneficial to its customers. At the completion of such hearing, the department may order an interim rate decrease if it finds that such return on equity or rates exceed a reasonable rate of return or are more than just, reasonable and adequate as determined by the department. Any such interim rate decrease shall be subject to a customer surcharge if the interim rates collected by the company are less than the rates finally approved by the department or fixed at the conclusion of any appeal taken as a result of any finding by the department. Such surcharge shall be assessed against customers in such amounts and by such procedure as ordered by the department.”

       General Statutes § 16-19a (a) provides: “The Department of Public Utility Control shall, at intervals of not more than four years from the last previous general rate hearing of each gas, electric and electric distribution company having more than seventy-five thousand customers, conduct a complete review and investigation of the financial and operating records of each such company and hold a public hearing to determine whether the rates of each such company are unreasonably discriminatory or more or less than just, reasonable and adequate, or that the service furnished by such company is inadequate to or in excess of public necessity and convenience or that the rates do not conform to the principles and guidelines set forth in section 16-19e. In making such determination, the department shall consider the gross and net earnings of such company since its last previous general rate hearing, its retained earnings, its actual and proposed capital expenditures, its advertising expenses, the dividends paid to its stockholders, the rate of return paid on its preferred stock, bonds, debentures and other obligations, its credit rating, and such other financial and operating information as the department may deem pertinent.”

       Additionally, the department found that the power company might be overeaming as much as $291 million — the $150 million balance not addressed by the interim rate hearing to be considered as part of the full rate case.

       General Statutes § 16-2a (a) provides: “There shall continue to be an independent Office of Consumer Counsel, within the Department of Public Utility Control for administrative purposes only, to act as the advocate for consumer interests in all matters which may affect Connecticut consumers with respect to public service companies, electric suppliers and persons, firms and corporations certified, or seeking to be certified, to provide intrastate telecommunications service pursuant to sections 16-247Í to 16-247h, inclusive. The Office of Consumer Counsel is authorized to appear in and participate in any regulatory or judicial proceedings, federal or state, in which such interests of Connecticut consumers may be involved, or in which matters affecting utility services rendered or to be rendered in this state may be involved. The Office of Consumer Counsel shall be a party to each contested case before the Department of Public Utility Control and shall participate in such proceedings to the extent it deems necessary. Said Office of Consumer Counsel may appeal from a decision, order or authorization in any such state regulatory proceeding notwithstanding its failure to appear or participate in said proceeding."

       The department’s § 16-19a periodic review decision stated: “In light of the [power company’s] financial condition, the [department will consider write down of regulatory assets as a. primary means of addressing overearnings while taking into account the needs of and fairness to ratepayers.” Department of Public Utility Control Financial and Operations Review of the Connecticut Light & Power Co., Docket No. 97-05-12 (December 31, 1997) p. 1.
      In its § 16-19 (g) interim rate decision, the department noted that “the [department recognizes the [power company’s] tenuous financial condition. In light, of the [department’s concent about the [power company’s] finances, the [department, believes it is in the public interest to apply the majority of the reduction on a non-cash basis.” Department of Public Utility Control Review of the Connecticut Light & Power Co.’s Rates and Charges, Docket No. 98-01-02 (February 25, 1998) p. 4.

       This amount was distributed between two assets that represent $700 million in ratepayer liability. Approximately $100 million was designated for amortization of a Statement of Financial Accounting Standards (FAS) 109 account, which represents deferred taxes. Approximately $10 million was designated for amortization of a conservation and load management asset.

       See footnote 1 of this opinion.

       The legislative history of House Bill No. 7216, which included the text of § 16-19 (g), also supports this conclusion. Senator Gary A. Hale noted that the department “will be authorized to grant a utility rate decrease without a full hearing under special circumstances.” (Emphasis added.) 30 S. Proc., Pt. 11, 1987 Sess., pp. 4040-41. The title of the bill is also of significance: “AN ACT PERMITTING THE DEPARTMENT OF PUBLIC UTILITY CONTROLS TO ORDER INTERIM RATE DECREASES.” Significantly, the department is permitted and authorized, but not mandated, to decrease rates.

       General Statutes § 16-19e (a) provides: “In the exercise of its powers under the provisions of this title, the Department of Public Utility Control shall examine and regulate the transfer of existing assets and franchises, the expansion of the plant and equipment of existing public service companies, the operations and internal workings of public service companies and the establishment of the level and structure of rates in accordance with the following principles: (1) That there is a clear public need for the service being proposed or provided; (2) that the public service company shall be fully competent to provide efficient and adequate service to the public in that such company is technically, financially and managerially expert and efficient; (3) that the department and all public service companies shall perform all of their respective public responsibilities with economy, efficiency and care for the public safety, and so as to promote economic development within the state with consideration for energy and water conservation, energy efficiency and the development and utilization of renewable sources of energy and for the prudent management of the natural environment; (4) that the level and structure of rates be sufficient, but no more than sufficient, to allow public service companies to cover their operating and capital costs, to attract needed capital and to maintain their financial integrity, and yet provide appropriate protection to the relevant public interests, both existing and foreseeable; (5) that the level and structure of rates charged customers shall reflect prudent and efficient management of the franchise operation and (6) that the rates, charges, conditions of service and categories of service of the companies not discriminate against customers which utilize renewable energy sources or cogeneration technology to meet a portion of their energy requirements.”

       See footnote 9 of this opinion.

       As we noted earlier, the full rate case in this instance was completed by February 5, 1999, less than one year after the conclusion of the interim rate case hearing.

       The plaintiffs argument alleged a violation by the trial court, of General Statutes § 4-183 Q), pursuant to which that court must affirm an agency decision on a factual question if that decision is supported by substantial evidence in the record, rather than substitute its own judgment as to the weight, of the evidence. Specifically, the plaintiff claims that the trial court substituted its judgment for that of the department as to Hie weight of the evidence on the factual determination of whether the accelerated amortization directly benefited ratepayers. We believe our rephrasing to be a clearer and more accurate restatement of the plaintiffs claim.