source: Caselaw Access Project

author: VERTEFEUILLE, J.

license: Public Domain

text:
    CITY OF DANBURY v. DANA INVESTMENT CORPORATION/LOT NUMBER GO8065 ET AL.
    (SC 16243)
    McDonald, C. J., and Norcott, Katz, Palmer and VertefeuiUe, Js

    Argued December 6, 2000
    officially released July 24, 2001

      Mark S. Baldwin, for the appellant (defendant Phil-bury, Inc.).

      Robert A. Izard, Jr., with whom, on the brief, were Linda L. Morkan and Carol A. Shubinski, for the appellee (substitute plaintiff Transamerica Business Credit Corporation).

       Although Chief Justice McDonald reached the mandatory age of retirement before the date that this opinion was officially releaed, his continued participation on this panel is authorized by General Statutes § 51-198 (c). The listing of justices reflects their seniority status on this court as of the date of argument.

   Opinion

VERTEFEUILLE, J.

The issue raised in this joint appeal from 111 separate judgments of strict foreclosure is whether the trial court, on remand from this court; Danbury v. Dana Investment Corp., 249 Conn. 1, 31, 730 A.2d 1129 (1999); properly awarded sheriffs fees where the party requesting those fees failed to present any evidence to support its request. The defendant Philbury, Inc. (Philbury), appeals from the judgments of the trial court awarding sheriffs fees to the plaintiff totaling $164,000. On appeal, Philbury claims that the award of sheriffs fees should be vacated because the plaintiff failed to establish that the requested sheriffs fees were reasonable. We agree.

These cases return to us for a second time. In the previous appeal, we found the following facts. “By a writ returnable in May, 1994, the [original plaintiff, the city of Danbury (city)] brought these 111 separate actions to foreclose on the 111 separate tax liens that it duly had filed against the properties for unpaid real estate taxes for the tax years 1985 through 1991. Dana Investment Corporation (Dana), the owner of the properties at that time, was the named defendant, along with Philbury, which also was named as a defendant because it held a mortgage on the properties that was subordinate to the city’s tax liens. Because there were numerous lienholders against the properties, there were eighteen defendants named in the writ. Thereafter, Phil-bury foreclosed on the mortgage that it held and thereby acquired title to the properties. In June, 1995, the city withdrew the actions against Dana, and proceeded against Philbury as the owner of the properties. Thereafter, in July, 1996, the city amended the complaint to include foreclosure of tax liens for the tax years 1992 through 1994, so that the actions as ultimately tried were for foreclosure of tax liens representing unpaid taxes for the years 1985 through 1994.” Id., 5-6.

“Thereafter, in February, 1997, the cases were tried together as contested foreclosure cases. At the conclusion of the evidence on February 20, 1997, when Phil-bury sought to address the city’s bill of costs, the court determined that the bill of costs would be passed on by the clerk as an initial matter, after which ‘there can be an appeal to the court.’ Philbury agreed to this procedure. Then, in each case, the court rendered a judgment of strict foreclosure, and awarded the city in each case: (1) an attorney’s fee of $1600, for a total of $177,600; (2) a title search fee of $100, for a total of $11,100; and (3) an appraiser’s fee of $110, which consisted of $100 for the appraisal and $10 for the appraiser’s testimony in court, for a total of $12,210. The court set a law day for Philbury of June 2, 1997, having taken into account Philbury’s evidence that it had a potential buyer for 80 to 85 of the 111 lots for a total of approximately $1.3 million.

“Thereafter, Philbury filed an objection to the city’s bill of costs in each case and, pursuant to Practice Book § 412, now § 18-5 (a), the parties appeared before the clerk for taxation of costs. The clerk taxed costs in each case based upon the city’s bill of costs. Philbury sought review by the trial court pursuant to Practice Book § 18-5 (b), and upon review, the court overruled Philbury’s objections and entered the following orders awarding in each case: (1) an entry fee of $150, which already had been paid by the city, for a total of $16,650; and (2) sheriffs fees of approximately $1500, for a total of approximately $170,000. The court purportedly calculated the sheriffs fees according to [General Statutes (Rev. to 1993)] § 52-261 ... as follows: ‘3505 miles traveled at .21 cents per mile, per writ and per lis pen-dens for a total of $1472.10 ($736.05 for all writs and $736.05 for all lis pendens).’ ” Id., 9-11.

The first time this case was before us, we concluded that “[i]t was an abuse of [the trial court’s] discretion to award the sheriffs fees in these cases as if the sheriff had traveled approximately twice the earth’s circumference in serving process, and had made 111 separate trips in filing the various lis pendens. The court should have exercised further oversight, and reduced the total sheriffs fees to a reasonable amount, taking into account the actual amount of travel engaged in and the services performed, with a reasonable premium added based on the fact that the sheriff was responsible for properly serving 111 writs, rather than just one writ, and filing 111 lis pendens, rather than just one lis pendens.” (Emphasis added.) Id., 30. “We . . . determined that the sheriffs fees must be reduced drastically and recalculated.” Id., 31. We, therefore, “ affirm [ed] the judgment in all respects except for the award of sheriffs fees, which we reverse [d] andremand[ed] for a new hearing.” Id., 3.

At the hearing held pursuant to our remand, the plaintiff produced no additional evidence regarding the award of sheriffs fees. Solely on the basis of the original bill of costs and an amended bill of costs that was filed prior to our remand, the trial court eliminated all of the sheriffs travel expenses, thereby reducing the total sheriffs fees from approximately $170,000 to approximately $164,000. This appeal followed.

Philbury now claims that the judgment of the trial court awarding sheriffs fees should be reversed and remanded for a full evidentiary hearing. Specifically, Philbury claims that: (1) the trial court failed to recalculate and drastically reduce the entire award of sheriffs fees; (2) the trial court failed to hold an evidentiary hearing; and (3) the plaintiff failed to meet its burden of proving that the award of sheriffs fees was reasonable. In response, the plaintiff claims that: (1) the trial court properly limited its inquiry on remand to reconsidering only the portion of the award of sheriffs fees pertaining to travel expenses; (2) no evidentiary hearing was necessary; (3) Philbury had the burden of production and burden of proof at the hearing because it was the moving party; and (4) Philbury failed to meet its burdens of production and proof. We agree with Phil-bury that the plaintiff had the burden of proof at this hearing and that the plaintiff failed to satisfy its burden of proof. Accordingly, we reverse the judgments of the trial court and remand the cases to that court with direction to vacate the award of sheriffs fees and to deny the plaintiffs request for sheriffs fees.

In Danbury v. Dana Investment Corp., supra, 249 Conn. 29-30, we determined that the sheriffs fees in this case are governed both by General Statutes § 12-193, which covers court costs in municipal tax lien foreclosure cases, and § 52-261. See footnote 6 of this opinion. In addition, we determined that “ [irrespective of what § 52-261 would justify in an ordinary case of multiple service of process by a sheriff, the facts of this case are extraordinary. . . . The court should have exercised further oversight, and reduced the total sheriffs fees to a reasonable amount, taking into account the actual amount of travel engaged in and the services performed . . . .” Id., 30. We further concluded that on remand “the sheriffs fees must be reduced drastically and recalculated.” Id., 31.

On remand, therefore, the trial court was required to reexamine the award of sheriffs fees, determine a reasonable amount thereof, and drastically reduce the original award. Philbury contends that as the party requesting the sheriffs fees pursuant to Practice Book § 18-5, the plaintiff had the burden of proof at the hearing. In response, the plaintiff claims that Philbury had the burden of proof at the hearing because the hearing was held on Philbury’s motion for review of the taxation of costs. After a review of both our original decision in this case and § 18-5 (a), we conclude that the burden of proof for the award of sheriffs fees on remand remained with the plaintiff.

As the party requesting an award of sheriffs fees pursuant to General Statutes § 52-261 and Practice Book § 18-5, the plaintiff had the initial burden of proving that it was entitled to sheriffs fees. Practice Book § 18-5 (a) provides that “[c]osts may be taxed by the clerk in civil cases fourteen days after the filing of a written bill of costs . . . .” It was the plaintiff that filed the bill of costs that gave rise to the issue now before us and it is the plaintiff who seeks reimbursement for the sheriffs fees associated with these cases.

An examination of our previous decision in this case also supports our conclusion that the plaintiff had the burden of proof at the hearing. In the initial appeal, we remanded the case to the trial court for a new hearing, requiring that the trial court reduce and recalculate the sheriffs fees. Danbury v. Dana Investment Corp., supra, 249 Conn. 31. In remanding the case, we concluded that the trial court “should have exercised [its] oversight, and reduced the total sheriffs fees to a reasonable amount, taking into account the actual amount of travel engaged in and the services performed . . . .” (Emphasis added.) Id., 30. In so concluding, we recognized that on remand the trial court would need to make factual determinations about the “actual amount of travel engaged in and the services performed” in order to determine reasonable sheriffs fees. Id. As the party that directed the sheriff to make service and received the benefits of the sheriffs services, the plaintiff was the party with access to the information necessary for the trial court to determine the actual travel engaged in by the sheriff and the services he performed. Section 18-5 (a) requires that the plaintiff prove the reasonable sheriffs fees to which it is entitled by submitting a bill of costs and our remand did not shift the burden of proof from the plaintiff. Our previous decision in this case merely pointed to specific factual issues that needed to be addressed for the trial court to award reasonable sheriffs fees. A careful examination of that decision demonstrates that on remand the plaintiff had the burden of proving the “actual amount of travel engaged in and the services performed” in order for the trial court to award reasonable sheriffs fees. (Emphasis added.) Id.

The plaintiff, however, failed to present any evidence at the hearing on remand. When given an opportunity to present witnesses, the plaintiff repeatedly declined, relying instead on the bill of costs and the amended bill of costs, which had been submitted prior to the remand.

In an analogous line of cases, the Appellate Court determined that “[a]n award of attorney’s fees under [a contract clause providing for payment of reasonable attorney’s fees] requires an evidentiary showing of reasonableness.” Ottavani v. Pechi, 16 Conn. App. 705, 709, 548 A.2d 1354 (1988). Moreover, this court has held that “no award for an attorney’s fee may be made when the evidence is insufficient.” (Internal quotation marks omitted.) Appliances, Inc. v. Yost, 186 Conn. 673, 680, 443 A.2d 486 (1982). By requiring the requesting party to submit a bill of costs, Practice Book § 18-5 (a) requires a similar evidentiary showing of reasonableness for an award of sheriffs fees. The plaintiff failed, however, to present any evidence concerning the actual travel engaged in by the sheriff and the actual services performed. The trial court eliminated all travel expenses but awarded $164,000 in sheriffs fees in the absence of any additional evidence concerning the actual services performed. No sheriffs fees should have been awarded by the trial court, because the plaintiff failed to meet its burden of proof as to the actual services performed.

Philbury contends that this case should be remanded for a further evidentiary hearing. We already have remanded this case once for a new hearing on the reasonableness of the sheriffs fees. See Danbury v. Dana Investment Corp., supra, 249 Conn. 31. At the hearing on remand, the plaintiff repeatedly was given the opportunity to present evidence on the sheriffs fees, but failed to do so. It is well established that a plaintiff is limited to only one opportunity to prove its claim. See Somers v. Statewide Grievance Committee, 245 Conn. 277, 301, 715 A.2d 712 (1998); see also Mildred Cotler Trust v. United States, 184 F.3d 168, 176 (2dCir. 1999); Beach v. Milford Ice Co., 87 Conn. 528, 536, 89 A. 181 (1913); Smith v. Liburdi, 22 Conn. App. 562, 564, 578 A.2d 160, cert. denied, 216 Conn. 816, 580 A.2d 60 (1990). We conclude, therefore, that it would be improper to remand this case for a further hearing because it would inappropriately give the plaintiff a second chance to prove its case for sheriffs fees.

The judgments are reversed with respect to the award of sheriffs fees and the cases are remanded to the trial court with direction to vacate that award and to deny the plaintiffs request for sheriffs fees.

In this opinion the other justices concurred.

       Philbury appealed from the judgments 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).
      In addition to Philbury, there were seventeen other parties named as defendants in these cases. They are not involved in this appeal. Philbury, the owner of the property involved in these cases, is the only appealing party. See Danbury v. Dana Investment Corp., supra, 249 Conn. 3 n.l.

       The judgments of strict foreclosure and the accompanying costs and fees were rendered in favor of the original plaintiff in this case, the city of Danbury. Subsequent to the date of the judgments, Transamerica Business Credit Corporation was substituted as the plaintiff. References herein to the plaintiff are to Transamerica Business Credit Corporation.

       Philbury also makes the following additional claims: (1) that the trial court abused its discretion when it modified the award of statutory sheriffs fees because it failed to reduce the total fees to a reasonable amount; (2) that the trial court improperly reduced the sheriffs fees by simply eliminating the travel expenses without conducting an evidentiary hearing to determine the reasonableness of the fees; and (3) that on remand the cases should have been referred to the judge who originally had tried them, hi light of our conclusion that the trial court’s award of sheriffs fees should be vacated because the plaintiff failed to meet its burden of proof, we need not reach Philbury’s three other claims.

       Practice Book § 18-5 (a) provides: “Costs may be taxed by the clerk in civil cases fourteen days after the filing of a written bill of costs provided that no objection is filed. If a written objection is filed within the fourteen day period, notice shall be given by the clerk to all appearing parties of record of the date and time of the clerk’s taxation. The parties may appear at such taxation and have the right to be heard by the clerk.”

       Practice Book § 18-5 (b) provides: “Either party may move the judicial authority for a review of the taxation by the clerk by filing a motion for review of taxation of costs within twenty days of the issuance of the notice of taxation by the clerk.”

       General Statutes (Rev. to 1993) § 52-261 provides: “Except as provided in section 52-261a, each officer or person who serves process, summons or attachments shall receive a fee of not more than twenty dollars for each process served and an additional fee of ten dollars for the second and each subsequent defendant upon whom the process is served. Each such officer or person shall also receive twenty-one cents for each mile of travel, to be computed from the place where he received the process to the place of service, and thence in the case of civil process to the place of return. If more than one process is served on one person at one time by any such officer or person, the total cost of travel for the service shall be the same as for the service of one process only. Each officer or person who serves process shall also receive the moneys actually paid for town clerk’s fees on the service of process. Any officer or person required to summon jurors by personal service of a warrant to attend court shall receive for the first ten miles of travel while so engaged, such mileage to be computed from the place where he receives the process to the place of service, twenty-five cents for each mile, and for each additional mile, ten cents. For summoning any juror to attend court otherwise than by personal service of the warrant, such officer or person shall receive only the sum of fifty cents and actual disbursements necessarily expended by him in making service thereof as directed. Notwithstanding the provisions of this section, for summoning grand jurors, such officer or person shall receive only his actual expenses and such reasonable sum for services as are taxed by the court. The following fees shall be allowed and paid: (1) For taking bail or bail bond, one dollar; (2) for copies of writs and complaints, exclusive of endorsements, one dollar per page, not to exceed a total amount of nine hundred dollars in any particular matter; (3) for endorsements, forty cents per page or fraction thereof; (4) for service of a warrant for the seizure of intoxicating liquors, or for posting and leaving notices after the seizure, or for the destruction or delivery of any such liquors under order of court, twenty dollars; (5) for the removal and custody of such liquors so seized, reasonable expenses, and twenty dollars; (6) for levying an execution, when the money is actually collected and paid over, or the debt secured by the officer to the acceptance of the creditor, ten per cent on the amount of the execution, provided the minimum fee for such execution shall be twenty dollars; (7) on the levy of an execution on real property and on application for sale of personal property attached, to each appraiser, for each half day of actual service, reasonable and customary expenses; (8) for causing an execution levied on real property to be recorded, fees for travel, twenty dollars and costs; (9) for services on an application for the sale of personal property attached, or in selling mortgaged property foreclosed under a decree of court, the same fees as for similar services on executions; (10) for committing any person to a community correctional center, in civil actions, twenty-one cents a mile for travel, from the place of the court to the community correctional center, in lieu of all other expenses; and (11) for summoning and attending a jury for reassessing damages or benefits on a highway, three dollars a day. The court shall tax as costs a reasonable amount for the care of property held by any officer under attachment or execution. The officer serving any attachment or execution may claim compensation for time and expenses of any person, in keeping, securing or removing property taken thereon, provided he shall make out a bill. The bill shall specify the labor done, and by whom, the time spent, the travel, the money paid, if any, and to whom and for what. The compensation for the services shall be reasonable and customary and the amount of expenses and shall be taxed by the court with the costs.”
      We refer herein to the 1993 revision of § 52-261, as that is the revision that was in effect at the time of the service of process in these cases.

       General Statutes § 12-193 provides: “Court costs, reasonable appraiser’s fees, and reasonable attorney’s fees incurred by a municipality as a result of any foreclosure action brought pursuant to section 12-181 or 12-182 and directly related thereto shall be taxed in any such proceeding against any person or persons having title to any property so foreclosed and may be collected by the municipality once a foreclosure action has been brought pursuant to section 12-181 or 12-182.”


author: NORCOTT, J. AXELROD, J.,

text:
    HERMAN ALSWANGER ET AL. v. DOUGLAS R. SMEGO ET AL.
    (SC 16309)
    Sullivan, C. J., and Borden, Norcott, Zarella and Axelrod, Js.

      Argued February 15
    officially released July 24, 2001

      Mario DiNatale, with whom were Paul A. Slayer and, on the brief, Richard A. Silver, for the appellants (plaintiffs).

      Garie J. Mulcahey, with whom, on the brief, was Heidi M. Priwall, for the appellee (named defendant).

      Deborah S. Chang, for the appellee (defendant Stamford Hospital).
   Opinion

NORCOTT, J.

The issue in this appeal is whether allegations asserted in an amended complaint related back to the original complaint and, therefore, were timely under General Statutes § 52-584. The plaintiffs, Herman Alswanger (Alswanger) and his wife, Myma Alswanger, appeal from the judgment of the trial court granting summary judgment in favor of the defendants. The plaintiffs claim that the trial court improperly reached one or more of the following conclusions of law: (1) that the amendments to the informed consent allegation necessarily stated a claim for battery, rather than negligence, and thus stated a new cause of action that did not relate back to the plaintiffs’ original complaint; (2) that the fact that an inexperienced resident would perform significant parts of a patient’s surgery was not material information that a patient should be told before giving his informed consent, and, accordingly, that there was no actionable negligence; and (3) that the plaintiffs’ amended allegations of the defendants’ negligence in obtaining Alswanger’s consent arise from a different set of facts than the allegations of the original complaint, and, accordingly, were time-barred because they did not relate back either to the plaintiffs’ informed consent allegations, or to the plaintiffs’ general negligence allegations in the original complaint. We conclude that the allegations in the plaintiffs’ amended complaint alleging lack of informed consent regarding a resident’s participation in the surgery arose from a different set of facts than the allegations set forth in the original complaint. The amended complaint, therefore, did not relate back and was barred under the statute of limitations. Accordingly, we affirm the judgment of the trial court.

The plaintiffs initiated this action against the defendants, Douglas R. Smego, a physician, and Stamford Hospital (hospital), alleging, inter alia, that the defendants failed to advise the plaintiffs of all material risks involved in a certain surgical procedure. The plaintiffs then filed an amended complaint, specifically alleging that the defendants failed to obtain Alswanger’s consent to the participation of a surgical resident, Jay Dewell, as a co-operating surgeon. The defendants filed motions for partial summary judgment with respect to this allegation, claiming that it was a new claim that did not relate back to the original complaint and, therefore, was barred by the applicable statute of limitations. The court granted the defendants’ motions for summary judgment. The plaintiffs withdrew their other informed consent allegations and the case went to trial on the remaining issues. The court granted the hospital’s motion for a directed verdict. Thereafter, the jury returned a verdict in favor of Smego. The court, subsequently, denied the plaintiffs’ motion to set aside the verdict and rendered judgment for Smego. This appeal followed.

The following facts are relevant to our disposition of this appeal. Smego had been treating Alswanger for a recurring superficial phlebitis condition of the right greater saphenous vein in his leg since 1986. Because of recurring problems, the parties agreed in January, 1990, that Smego would perform a surgical procedure to ligate and strip Alswanger’s right greater saphenous vein. The surgery was performed on March 19, 1990, by Smego and Dewell, a first year medical resident. Immediately after the surgery, Alswanger experienced pain from his groin down into his right leg. The pain continued throughout Alswanger’s postoperative treatment with Smego, which lasted until June, 1990. Alswanger’s pain finally subsided when a second surgery was performed on May 1,1991, by a different physician.

Thereafter, the plaintiffs filed a complaint against the defendants on June 16, 1992. The complaint alleged that Smego was negligent in sewing through a nerve in Alswanger’s upper thigh with permanent silk sutures, and in failing to disclose “all material risks involved in connection with his care and treatment, including the nature and possible consequences of the operation, the prospects of success, the prognosis if the procedure was not performed, and alternative methods of treatment available . . . .” The complaint also included a general negligence allegation that the defendants “failed to exercise that degree of care, skill, and/or diligence ordinarily employed by surgeons under similar circumstances . . . .”

On March 2, 1998, the plaintiffs filed an amended complaint. The relevant portions of the amended complaint restated the allegations of the original complaint and added claims of negligence relating to Dewell’s involvement in the surgical procedure. Specifically, the amended complaint alleged that Smego was negligent “in that he failed to disclose to and inform [Alswanger] of all material risks involved in connection with his surgery, care and treatment, including but not limited to the nature and possible consequences of the operation, the prospects of success, the prognosis if the procedure was not performed, the alternative methods of treatment available, and the fad that a medical resident, Jay Dewell, M.D., would participate as a cooperating surgeon . . . .” (Emphasis added.) The amended complaint also alleged that Smego was negligent “in that the operation was performed without the consent of [Alswanger] to the participation of Jay Dewell, M.D., as a co-operating surgeon . . . .”

The defendants each objected to the plaintiffs’ proposed amendment. The court, D Andrea, J., granted the plaintiffs’ motion to amend the complaint, but explicitly declined to address the legal sufficiency of the new allegations, stating that those issues would be more appropriately addressed through other procedural vehicles. In answering the amended complaint, the defendants each asserted a special defense, claiming that the plaintiffs’ amended allegations were barred by the applicable statute of limitations, § 52-584. The defendants, thereafter, each moved for summary judgment, again alleging that the plaintiffs’ amended claim was barred by the statute of limitations.

The court, Tierney, J., granted the summary judgment motions on August 17, 1998, and, in doing so, explained the relation back doctrine. “It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same. But where an entirely new and different factual situation is presented, a new and different cause of action is stated. In the event that a new and different factual situation is presented, any amendment will not relate back to the initial commencement of the lawsuit unless the original pleading had given a fair notice to the adverse party that a claim is being asserted against him for some particular transaction or occurrence.” The general rule, the court explained, would be to consider whether it would permit the admission of evidence relating to the consent of Dewell’s involvement in the surgery under the original complaint. Under this precept, the court determined that the original complaint lacked any allegations that there was a failure to obtain informed consent to Dewell’s participation and, therefore, concluded that such evidence would not have been admitted. Accordingly, the court concluded that the amended complaint did not relate back to the original complaint and, therefore, granted the defendants’ motions for summary judgment.

The relation back doctrine has been well established by this court. “A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief. ... A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action. ... A change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action. ... It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but where an entirely new and different factual situation is presented, a new and different cause of action is stated. . . . Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims . . . .” (Citation omitted; internal quotation marks omitted.) Barrett v. Danbury Hospital, 232 Conn. 242, 263-64, 654 A.2d 748 (1995).

Two cases in particular are illustrative of this court’s approach to the relation back doctrine. In Sharp v. Mitchell, 209 Conn. 59, 60, 546 A.2d 846 (1988), three men were asphyxiated in an underground fuel storage facility during the course of their employment. The plaintiffs, the administrators of the decedents’ estates, alleged a wrongful death action based on negligent supervision in their first complaint. Id., 73. They subsequently amended their complaint to allege that the defendant had negligently designed and constructed the storage facility. Id. In concluding that the amended complaint did not relate back to the original complaint, the court held that “[t]hese complaints involve two different sets of circumstances and depend on different facts to prove or disprove the allegations of a different basis of liability. . . . The defendants did not have fair-notice of the claim of negligent construction and design of the underground storage area when the original complaint merely alleged that [the defendant] was negligent in ordering the employees to enter the area.” Id. Moreover, the court noted that “[t]he fact that the same defendant is accused of negligence in each complaint and the same injury resulted . . . does not make any and all bases of liability relate back to an original claim of negligence.” Id.

This court came to a different conclusion in Gurliacci v. Mayer, 218 Conn. 531, 590 A.2d 914 (1991). In that case, the plaintiff claimed that she had suffered injuries when her vehicle was struck in the rear by a driver who was intoxicated. Id., 534. The plaintiffs first complaint alleged that the defendant had acted negligently in operating his automobile while he was intoxicated. Id., 546. After the relevant limitations period had passed, the plaintiff amended her complaint to add allegations that the defendant had acted either wilfully, wantonly and maliciously, or outside the scope of his employment. Id. In distinguishing Gurliacci from Sharp, we explained that the amendment in Sharp was significant because “the defendant would have been required to gather different facts, evidence and witnesses to defend the amended claim.” Id., 549. In Gurliacci, however, the amendment “did not inject two different sets of circumstances and depend on different facts . . . .” (Citation omitted; internal quotation marks omitted.) Id. Accordingly, we concluded that the amended complaint related back to the original complaint. Id., 546.

In the present case, we are faced with an amended complaint, filed after the statute of limitations had expired, alleging an act of negligence based on a different set of facts from that alleged in the original complaint. Although the focus of the original complaint was on the informed consent as it related to the surgical procedure itself, the amended complaint shifted the focus to consent by the patient to the participation of the individuals involved in the surgery. For example, the amended complaint would have required evidence as to Dewell’s actual and specific role in the surgery, his experience, whether the plaintiffs were informed of the role he would play and his experience, whether the defendants were required to provide that information to the plaintiffs, and the hospital’s policy, as a teaching hospital, regarding a resident’s involvement in surgery. Any discussion as to much of this evidence, however, would have been irrelevant under the original complaint, which asked whether the defendants adequately informed the plaintiffs regarding the surgical procedure. As in Sharp, the amendment in the present case would have forced the defendants “to gather different facts, evidence and witnesses to defend the amended claim.” Gurliacci v. Mayer, supra, 218 Conn. 549. Accordingly, the trial court properly disallowed the relation back of the amended complaint.

The plaintiffs claim that their amended complaint set forth only a more specific informed consent allegation and, therefore, the defendants were on notice that a lack of consent to Dewell’s participation was an issue they could raise. We disagree that the amendments gave the defendants adequate notice. All of the informed consent cases in Connecticut have involved the adequacy of information disclosed regarding the procedure and treatment to be performed. See, e.g., Fabrizio v. Glaser, 237 Conn. 25, 26, 675 A.2d 844 (1996) (alleging lack of informed consent for extraction of wisdom teeth); Pedersen v. Vahidy, 209 Conn. 510, 512, 552 A.2d 419 (1989) (alleging lack of informed consent for failure to disclose risks associated with lipoma removal); Shelnitz v. Greenberg, 200 Conn. 58, 60, 509 A.2d 1023 (1986) (alleging lack of informed consent for failure to disclose spinal headache as risk of myelogram procedure); Logan v. Greenwich Hospital Assn., 191 Conn. 282, 284, 465 A. 2d 294 (1983) (alleging lack of informed consent for failure to disclose alternatives to percutaneous renal biopsy). In Logan v. Greenwich Hospital Assn., supra, 292, we held that informed consent involves four specific factors: (1) the nature of the procedure; (2) the risks and hazards of the procedure; (3) the alternatives to the procedure; and (4) the anticipated benefits of the procedure. We are not aware of any case adjudicated by this court where the identity and qualifications of the participants in the procedure, and the policies of teaching hospitals, constituted a lack of informed consent claim. Thus, the defendants were reasonable in assuming that the originally alleged negligence involved only the procedure itself. Our case law supports the notion that the defendants had no reason to be on notice that informed consent to the surgical staff team was in issue.

The amended complaint, although alleging negligence related to the same surgery as the original complaint, had its basis in a different set of facts from the original complaint. That the injuries alleged and the parties involved in each complaint were identical did not eliminate the fact that the complaints were based on different facts. Sharp v. Mitchell, supra, 209 Conn. 73.

The judgment is affirmed.

In this opinion SULLIVAN, C. J., and BORDEN and ZARELLA, Js., concurred.

AXELROD, J.,

dissenting. I respectfully disagree with the result and the reasoning of the majority opinion.

The dispositive issue in this appeal is whether the plaintiffs’ amended allegations of the defendants’ negligence in obtaining the informed consent of the named plaintiff arise from a different set of facts than the allegations of the original complaint, and, accordingly, are time-barred because they do not relate back to the plaintiffs’ informed consent allegations in the original complaint.

The relevant portions of the first count of the plaintiffs’ original complaint provide in part: “3. On January 19, 1990, plaintiff [Herman Alswanger] came to [the named defendant, Douglas R. Smego’s] office for an exam. During the exam, [Smego] diagnosed plaintiffs discomfort as being caused by recurrent phlebitis and discussed the operative procedure of ligation and stripping the greater saphenous vein (essentially a varicose vein repair in which the vein is tied off and excised). [Smego] recommended that the plaintiff undergo such an operation and informed the plaintiff that such an operation would be performed on a day surgery basis at The Stamford Hospital (hereinafter, ‘Hospital’).

“4. The plaintiff continued to treat with [Smego] in connection with his discomfort and tenderness from January, 1990 through March 19, 1990.

“5. On March 19, 1990, the plaintiff arrived at the Hospital for his surgery, which [Smego] performed under general anesthesia with the assistance of a Hospital resident, Jay Dewell, M.D. . . .

“21. The plaintiffs injuries and deficits were caused by the negligence of [Smego] in one or more of the following respects . . .

“e. in that he failed to disclose to and inform plaintiff of all material risks involved in connection with his care and treatment, including the nature and possible consequences of the operation, the prospects of success, the prognosis if the procedure was not performed, and alternative methods of treatment available . . . .”

The relevant portions of the first count of the plaintiffs’ amended complaint provide in part: “3. On January 19,1990, plaintiff came to [Smego’s] office for an exam. During the exam, [Smego] diagnosed plaintiffs discomfort as being caused by recurrent phlebitis and discussed the operative procedure of ligation and stripping the greater saphenous vein (essentially a varicose vein repair in which the vein is tied off and excised). [Smego] recommended that the plaintiff undergo such an operation and informed the plaintiff that he would perform such an operation on a day surgery basis at The Stamford Hospital (hereinafter, ‘Hospital’). [Smego] did not state to plaintiff at any time that another physician would be operating on him.

“4. The plaintiff continued treatment with [Smego] in connection with his discomfort and tenderness from January 1990 through March 1990. In particular, plaintiff agreed to have Smego perform the saphenous vein surgery, but did not agree to have any other physician perform it.

“5. On March 19, 1990, the surgery was performed at the Hospital under general anesthesia by [Smego] and, without the knowledge of the plaintiff, by Hospital resident Jay Dewell, M.D. . . .

“21. The plaintiffs injuries and deficits were caused by the negligence of [Smego] in one or more of the following respects . . .

“e. in that he failed to disclose to and inform plaintiff of all material risks involved in connection with his surgery, care and treatment, including but not limited to the nature and possible consequences of the operation, the prospects of success, the prognosis if the procedure was not performed, the alternative methods of treatment available, and the fact that a medical resident, Jay Dewell, M.D. would participate as a cooperating surgeon;

“f. in that the operation was performed without the consent of the plaintiff to the participation of Jay Dewell, M.D. as a co-operating surgeon . . . .” (Emphasis added.)

The relation back doctrine has been established by this court. “A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief. ... A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which established the existence of that right and that delict constitutes the cause of action. ... A change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action. ... It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but where an entirely new and different factual situation is presented, a new and different cause of action is stated. . . . Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims . . . .’’(Citation omitted; emphasis added; internal quotation marks omitted.) Barrett v. Danbury Hospital, 232 Conn. 242, 263-64, 654 A.2d 748 (1995).

The majority opinion cites Gurliacci v. Mayer, 218 Conn. 531, 590 A.2d 914 (1991), as illustrative of the court’s approach to the relation back doctrine. In Gurliacci, the plaintiffs original complaint alleged that the defendant had acted negligently in operating his automobile while he was intoxicated. Id., 546. The proposed amendment sought to add allegations that the defendant had acted either wilfully, wantonly or maliciously, or outside the scope of his employment. Id. In allowing the amendment under the doctrine of relation back, the court stated that the “new allegations did not inject two different sets of circumstances and depend upon different facts . . . but rather amplified and expanded upon the previous allegations by setting forth alternative theories of liability. The fact that the new allegations had the potential effect of taking the claim outside the operation of the fellow employee immunity rule does not negate the identity of the cause of action. . . . [The defendant] had adequate notice that a claim was being asserted against him arising out of the alleged motor vehicle accident.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 549.

In the present case, Smego had adequate notice that a claim was being asserted against him under the doctrine of lack of informed consent. He also had adequate notice that there was a claim that Dewell was involved in the surgeiy. The cause of action that originally was based on lack of informed consent and the new allegations did not negate “the identity of the cause of action.” Id.

The majority holds that the focus of the original complaint was on the informed consent as it related to the surgical procedure itself, and that the amended complaint shifted the focus to consent by the patient to the participation of the individuals involved in the surgery. I respectfully disagree. The leading case in Connecticut on informed consent is Logan v. Greenwich Hospital Assn., 191 Conn. 282, 465 A.2d 294 (1983). In that case, the court held as follows: “In some of our cases, where the claim against the physician was contractual in nature, we have recognized the importance of informing the patient of certain aspects of the contemplated treatment or surgical procedure. . . . The failure to make a sufficient disclosure, which is ordinarily the basis for claiming lack of informed consent, has been regarded by most courts as presenting the question, not whether there was an effective consent which would preclude an action for battery, but whether the physician had fulfilled his duty of informing the patient under the appropriate standard. ... In a trilogy of cases decided in 1972 the traditional standard of customary medical practice in the community was abandoned by three jurisdictions as the criterion for informed consent in favor of a judicially imposed standard designed to provide a patient with information material to his decision upon a course of therapy.” (Citations omitted; emphasis added.) Id., 288-91.

More recently in Godwin v. Danbury Eye Physicians & Surgeons, P.C., 254 Conn. 131, 137 n.3, 757 A.2d 516 (2000), this court again recognized that “[t]he consent necessary to preclude a claim for assault and battery is different from the consent at issue on a claim of lack of informed consent, where the issue is whether a, sufficient disclosure was made.” (Emphasis added.) In that case, the focus of the complaint regarding informed consent did not relate to the surgical procedure itself, but rather, related to whether the physician had fulfilled his duty of making a sufficient disclosure to the patient under the appropriate standard. Id., 143.

“Unlike the traditional action of negligence, a claim for lack of informed consent focuses not on the level of skill exercised in the performance of the procedure itself but on the adequacy of the explanation given by the physician in obtaining the patient’s consent.” Dingle v. Belin, 358 Md. 354, 369-70, 749 A.2d 157 (2000).

In holding that the focus of the original complaint on the informed consent related to the surgical procedure itself and that the amendment shifted the focus to consent by the patient to the participation of the individual involved in the surgery, the majority opinion states that “[f]or example, the amended complaint would have required evidence as to Dewell’s actual and specific role in the surgery, his experience, whether the plaintiffs were informed of the role he would play and his experience, whether the defendants were required to provide that information to the plaintiffs, and the hospital’s policy, as a teaching hospital, regarding a resident’s involvement in surgery. Any discussion as to much of this evidence, however, would have been irrelevant under the original complaint, which asked whether the defendants adequately informed the plaintiffs regarding the surgical procedure.”

All potential amendments to a complaint require that there be some new evidence presented. Thus, in Gurliacci v. Mayer, supra, 218 Conn. 546, the amendment to the complaint would have required new evidence as to whether the defendant was acting either wilfully, wantonly or maliciously. Further, the amendment to the complaint would have required evidence as to whether the defendant was operating the motor vehicle outside the scope of his employment. Id. The fact that new evidence would be required in Gurliacci was not the determining factor as to whether the amendment would relate back to the original complaint. The amendment was allowed in Gurliacci in part because the defendant had adequate notice that a claim was being asserted against him arising out of the alleged motor vehicle accident and the amended complaint reiterated the negligence claim based on his operation of a motor vehicle. Id., 549.

In Gurliacci, the court held that “[w]e have previously recognized that our relation back doctrine is akin to rule 15 (c) of the Federal Rules of Civil Procedure, which provides in pertinent part: (c) RELATION BACK OF AMENDMENTS. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. . . . The policy behind rule 15 (c) is that a party, once notified of litigation based upon a particular transaction or occurrence, has been provided with all the notice that statutes of limitations are intended to afford. . . . Because rule 15 provides that an amendment relates back where the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims, is fully served.” (Citations omitted; internal quotation marks omitted.) Id., 547-48.

Other courts have ruled that amendments similar to the one in the present case would relate back to the date of the original complaint. The issue of amending a complaint in a medical malpractice action to allege lack of informed consent was addressed in Azarbal v. Medical Center of Delaware, Inc., 724 F. Sup. 279, 281-83 (D. Del. 1989), wherein the court stated: “The complaint alleges that the defendants were negligent in the performance of the amniocentesis. The complaint seeks damages for the child’s injuries and for the parents’ injuries resulting from the child’s illness and death. On April 10, 1989, the plaintiffs filed this motion to amend the complaint. Plaintiffs seek to amend the complaint in six respects. First, the plaintiffs seek to add a claim against [the physician] for failing to obtain the informed consent of [the child’s mother] prior to performing the amniocentesis .... The court will first address the propriety of allowing the amendment alleging lack of informed consent to the amniocentesis. [The physician] contends that this amendment would be futile because it is barred by the statute of limitations. The limitations period for bringing medical malpractice actions is two years. . . . Since the amniocentesis occurred more than two years before the motion to amend was filed, the informed consent claim would be barred were it not for Federal Rule of Civil Procedure 15 (c). . . . This court finds that the original complaint gave [the physician] adequate notice of the basis of the claim regarding lack of informed consent to the sterilization .... This court believes the original complaint provided adequate notice of any claims [the mother] would have arising from the amniocentesis, including a claim that [the physician] should have revealed that the procedure had caused fetal injury. The claim therefore relates back to the date of the original complaint and is not time-barred. The court will thus allow the plaintiffs to amend this claim to their complaint.” (Citation omitted; internal quotation marks omitted.)

I believe, just as in Azarbal, that the original complaint in the present case provided adequate notice of any claims the plaintiffs would have arising from the surgery, including a claim that Smego should have revealed that Dewell would be performing the surgery. Under rule 15 (c) of the Federal Rules of Civil Procedure, an amendment to a malpractice action to allege lack of informed consent after the statute of limitations has run relates back to the original complaint. Therefore, an original complaint sounding in malpractice that includes a claim of lack of informed consent should allow an amendment to the lack of informed consent claim after the statutes of limitations has run, and that amendment should relate back to the original complaint. Several New York courts have taken the same position as the court in Azarbal. Thus, in Grosse v. Friedman, 118 App. Div. 2d 539, 541, 498 N.Y.S.2d 863 (1986), and in Ecker v. Hopkins, 161 App. Div. 2d 1163, 555 N.Y.S.2d 959 (1990), medical malpractice actions were allowed to be amended to add a cause of action for lack of informed consent after the statute of limitations had run. In Ecker, the court stated that “[the] Supreme Court erred in concluding that [the] plaintiffs proposed amendment to her medical malpractice complaint was time barred. Although [the] plaintiff sought to amend by adding a new cause of action for lack of informed consent more than two and one-half years after [the] defendants’ last treatment of [the] plaintiff . . . the facts alleged in the original complaint gave adequate notice of the transactions or occurrences asserted in the proposed amended complaint, and thus, the amendment is deemed to have been interposed at the time the original claims were interposed . . . .” (Citations omitted.) Id.

In Johnson v. Kokemoor, 199 Wis. 2d 615, 620, 545 N.W.2d 495 (1996), a patient brought an action against a surgeon alleging failure to obtain her informed consent to surgery. The court stated: “In this case information regarding a physician’s experience in performing a particular procedure, a physician’s risk statistics as compared with those of other physicians who perform that procedure, and the availability of other centers and physicians better able to perform that procedure would have facilitated the plaintiffs awareness of ‘all of the viable alternatives’ available to her and thereby aided her exercise of informed consent.” Id., 623. “We reject the defendant’s proposed bright line rule that it is error as a matter of law to admit evidence in an informed consent case that the physician failed to inform the patient regarding the physician’s experience with the surgery or treatment at issue.” Id., 639. “When different physicians have substantially different success rates, whether surgery is performed by one rather than another represents a choice between ‘alternate, viable medical modes of treatment’ . . . .” (Emphasis added.) Id., 645.

In Barriocanal v. Gibbs, 697 A.2d 1169, 1170 (1997), an action was brought against a surgeon claiming lack of informed consent and negligence in performing the surgery. In reversing the trial court’s exclusion of the plaintiffs proffered expert testimony that the surgeon had breached the applicable standard of care required to obtain informed consent by failing to inform the patient of the surgeon’s lack of recent aneurysm surgery, the court stated: “Next, we must determine whether the exclusion of the proffered testimony constituted ‘significant prejudice so as to have denied the appellant a fair trial.’ By statute in Delaware, a health care provider is required to disclose ‘the risks and alternatives to treatment or diagnosis which a reasonable patient would consider material to the decision whether or not to undergo the treatment or diagnosis.’ ” (Emphasis added). Id., 1173.

In Dingle v. Belin, supra, 358 Md. 357, the plaintiff retained a surgeon to remove her gallbladder. The surgeon was assisted by a medical student and a resident, who was just beginning her fourth year of residency training. Id., 358. The resident dissected the gallbladder and removed it. Id. The plaintiff filed a battery count that was dismissed. She also filed a breach of contract claim and counts for negligence arising from the lack of informed consent. Id., 359. The thrust of the lack of informed consent count was that without the plaintiffs knowledge or consent, the resident played a very active role in the surgery and did the cutting, clamping and stapling, which should have been performed by the surgeon retained by the plaintiff. Id. The claim was that by failing to inform the plaintiff of the scope of responsibilities that would be performed by the resident, the surgeon and the resident “ ‘breached their duty to secure the fully informed consent of [the plaintiff] prior to commencing operating upon her.’ ” Id. The court stated that the “[r]isks, benefits, collateral effects, and alternatives normally must be disclosed routinely, but other considerations, at least if raised by the patient, may also need to be discussed and resolved. See Aaron D. Twerski & Neil B. Cohen, ‘The Second Revolution in Informed Consent: Comparing Physicians to Each Other,’ 94 Nw. U. L. Rev. 1 (1999); Johnson v. Kokemoor, [supra, 199 Wis. 2d 615]. One of those considerations, in an expanding era of more complex medical procedures, group practices, and collaborative efforts among health care providers, may be who, precisely, will be conducting or superintending the procedure or therapy. This may be especially important with respect to surgical procedures, which usually involve collaboration between the chosen surgeon and other medical professionals who may be unknown to the patient. The physician, as [the surgeon] indicated was the case here, may be unwilling to accept limitations on the actual performance of the surgery, but, if the identity of the persons who will be performing aspects of the surgery is important to the patient, the matter must be discussed and resolved.” (Emphasis added.) Dingle v. Belin, supra, 370.

The original complaint in the present case alleged lack of informed consent for failure to inform the plaintiffs of material risks involved and alternative methods of treatment available. The proposed amendments amplified and expanded upon those previous allegations by setting forth the claim that the failure to inform the plaintiffs that Dewell would be a co-operating surgeon failed to disclose to the plaintiffs the risks and alternatives to the treatment. Under the amendment, the identity of the cause of action remains substantially the same. The actionable occurrence in the original complaint and in the amendment is lack of informed consent. Smego had fair notice of the claim of lack of informed consent in the original complaint, and the amendment amplified and expanded on that claim.

I would hold that informed consent does involve a patient’s right to know the identity and qualifications of the surgeons involved in the patient’s procedure. I would not reach, at this time, the issue of a hospital’s policy, such as a teaching hospital, regarding a resident’s involvement in surgery and whether that involvement has to be unmasked to the patient.

Accordingly, I would find that the trial court improperly granted Smego’s motion for summary judgment, and I would remand the case for a new trial limited to the issue of lack of informed consent against Smego and the issue of damages.

       The plaintiffs 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).

       General Statutes § 52-584 provides: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

       It is important to note that this decision is limited to the issue of whether the allegations in the amended complaint arose from a different set of facts than those alleged in the original complaint. The judgment of the trial court similarly was limited to this issue. Contrary to the claims set forth in the plaintiffs’ briefs, the trial court did not conclude that the amendments necessarily stated a claim for battery; nor did the trial court conclude that a patient is without the right to know the identity and experience level of those participating in his or her own surgery. At oral argument before this court, the plaintiffs acknowledged the trial court's limited holding. Accordingly, we decline to address the underlying issues involved in the plaintiffs’ other claims.

       In granting the hospital’s motion for a directed verdict, the court concluded that Dewell was the “borrowed servant” of Smego during the surgical procedure. Thus, Dewell’s negligence, if any, could not be imputed to the hospital.

       Our holding should not be read to suggest that informed consent does not involve a patient’s right to know the identity and qualifications of the surgical team involved in the patient’s procedure. Rather, we make no comment on that issue. We cite these cases only to demonstrate the validity and reasonableness of the defendants’ surprise.


text:
    STATE OF CONNECTICUT v. AFSCME, AFL-CIO, COUNCIL 4, LOCAL 2663
    (SC 16409)
    Sullivan, C. J., and Borden, Norcott, Katz, Palmer, Vertefeuille and Zarella, Js.

      Argued February 14
    officially released July 31, 2001

      Richard T. Sponzo, assistant attorney general, with whom, on the brief, were Richard Blwmenthal, attorney general, and Thomas P. Clifford III, assistant attorney general, for the appellant (plaintiff).

      Barbara J. Collins, for the appellee (defendant).
   Opinion

VERTEFEUILLE, J.

The issue raised by this appeal is whether the trial court properly granted an application to confirm an arbitration award granting overtime pay to staff attorneys for the commission on human rights and opportunities (commission). The plaintiff, the state of Connecticut, appeals from the judgment of the trial court denying its application to vacate the arbitration award and granting the application to confirm the award filed by the defendant, American Federation of State, County and Municipal Employees, AFLCIO, Council 4, Local 2663. The plaintiff contends that the trial court improperly confirmed the arbitrator’s award granting overtime pay to commission staff attorneys because: (1) the arbitrator erroneously interpreted the statutory overtime exemption provided in the federal Fair Labor Standards Act, title 29 of the United States Code, § 201 et seq. (act); and (2) the arbitrator’s award violated the public policy prohibiting overtime compensation for professional employees. We conclude that the trial court properly confirmed the award, and, accordingly, we affirm the judgment of the trial court.

The following undisputed facts are relevant to this appeal. The plaintiff and the defendant entered into a collective bargaining agreement (agreement) that covered the period from July 1,1994 through June 30,1999. The agreement contained provisions with respect to wages, hours and conditions of employment. The agreement also contained a provision regarding arbitration of disputes that arose under the agreement. The defendant submitted a grievance to arbitration, claiming that the plaintiff violated certain contractual provisions relating to overtime pay in general and, specifically for Veteran’s Day, 1994. On September 12, 1997, the arbitrator issued its award. The arbitrator determined that the commission had violated the provisions of the agreement with regard to overtime pay and awarded overtime pay for commission staff attorneys.

Thereafter, the plaintiff filed an application in the trial court to vacate the arbitrator’s award pursuant to General Statutes § 52-418. The defendant filed an application in the trial court to confirm the award pursuant to General Statutes § 52-417. The trial court denied the plaintiffs application to vacate the award and granted the defendant’s application to confirm the award, and rendered judgment accordingly. This appeal followed.

I

The plaintiff first claims that the trial court improperly denied its application to vacate the arbitrator’s award pursuant to § 52-418 (a) (4) because the arbitrator improperly had interpreted the statutory exemption provided in the act. The plaintiff contends that the arbitrator exceeded his power because the award violated the act. Specifically, the plaintiff asserts that the arbitration award violated § 213 (a) (1) of title 29 of the United States Code because it treated commission staff attorneys as hourly employees rather than as salaried employees. The defendant claims that the trial court properly granted the application to confirm the award because the award conformed to the submission. We agree with the defendant.

We begin by setting forth the appropriate standard of review of arbitration awards. “The well established general rule is that [w]hen the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties’ agreement. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 185, 530 A.2d 171 (1987). When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission. Hartford v. Board of Mediation & Arbitration, 211 Conn. 7, 14, 557 A.2d 1236 (1989); New Haven v. AFSCME, Council 15, Local 530, 208 Conn. 411, 415-16, 544 A.2d 186 (1988). Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution. Garrity v. McCaskey, 223 Conn. 1, 4-5, 612 A.2d 742 (1992). Furthermore, in applying this general rule of deference to an arbitrator’s award, [ejvery reasonable presumption and intendment will be made in favor of the [arbitral] award and of the arbitrators’ acts and proceedings. . . . Metropolitan District Commission v. AFSCME, Council 4, Local 184, 237 Conn. 114, 119, 676 A.2d 825 (1996).” (Internal quotation marks omitted.) Groton v. United Steelworkers of America, 254 Conn. 35, 43-44, 757 A.2d 501 (2000).

“When the parties have agreed to a procedure and have delineated the authority of the arbitrator, they must be bound by those limits. Waterbury Board of Education v. Waterbury Teachers Assn., [168 Conn. 54, 62, 357 A.2d 466 (1975)]. An application to vacate or correct an award should be granted where an arbitrator has exceeded his power. In deciding whether an arbitrator has exceeded his power, we need only examine the submission and the award to determine whether the award conforms to the submission. New Britain v. Connecticut State Board of Mediation & Arbitration, 178 Conn. 557, 562, 424 A.2d 263 (1979); Board of Education v. Bridgeport Education Assn., 173 Conn. 287, 291, 377 A.2d 323 (1977). A challenge of the arbitrator’s authority is limited to a comparison of the award to the submission. . . . Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that the construction placed upon the facts or the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators’ decision of the legal questions involved. Meyers v. Lakeridge Development Co., 173 Conn. 133, 135, 376 A.2d 1105 [1977].” (Internal quotation marks omitted.) Bic Pen Corp. v. Local No. 134, 183 Conn. 579, 584, 440 A.2d 774 (1981).

We interpret the plaintiffs argument as a claim that the arbitrator improperly interpreted the act’s overtime exemption for professional employees. Although the plaintiff mentions that an award may be vacated for a manifest disregard of the law under Garrity v. McCaskey, supra, 223 Conn. 10, the plaintiffs brief does not assert that the arbitrator acted in manifest disregard of the law. We therefore understand the plaintiffs claim simply to be that the arbitrator improperly interpreted the applicable law. Resolution of this issue depends on the scope of the submission.

In the present case, the parties’ submission to the arbitrator was voluntary pursuant to the collective bargaining agreement. At oral argument before this court, both parties conceded that the submission was unrestricted. “[J]udicial review of an award following an unrestricted submission is limited to whether the award conforms to the submission. Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 106, 438 A.2d 1171 (1981).” Wilson v. Security Ins. Group, 199 Conn. 618, 627, 509 A.2d 467 (1986). We, therefore, review the arbitrator’s award only to the extent necessary to determine if it conforms to the submission. As the party challenging the award, the plaintiff “has the burden of producing evidence sufficient to show that it does not conform to the submission.” Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 338-39, 555 A.2d 406 (1989). The plaintiff has failed to meet this burden.

The submission to the arbitrator contained the following stipulated issues: “Did the [commission] violate the provisions of Article 18, Section l and/or Article 27, Section 3 of the [agreement] via its method of compensating [commission] Staff Attorneys working overtime in general, and on November 14, 1994 (Veteran’s Day) specifically? Further, did the [commission’s] actions constitute a violation of Article 1, Section l; Article 2; and/or Article 19, Sections l and 3? In the event of a violation, what shall be the remedy consistent with the [agreement]?” The arbitrator first determined that the commission had violated the provisions of article 18, § 1, of the agreement in its compensation of commission staff attorneys. By way of remedy, the arbitrator then awarded commission staff attorneys compensation for all hours worked beyond thirty-five hours per week, minus any hours for which compensatory time was allowed, and mandated that the relief be retroactive for thirty days prior to the date on which the grievance was filed. We conclude that the award clearly conformed to the terms of the unrestricted submission. We therefore do not review the award for the error of law claimed by the plaintiff. See Caldor, Inc. v. Thornton, 191 Conn. 336, 342, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985).

II

The plaintiff next claims that the trial court improperly confirmed the award of the arbitrator because the award violates a clear public policy. Specifically, the plaintiff claims that the arbitration award violates the clear public policy of prohibiting professional employees from receiving overtime compensation that is contained in the act and General Statutes § 5-245 (b). The defendant, however, asserts that: (1) the plaintiff has failed to meet its burden of identifying a public policy contained in the act or § 5-245; and (2) even if the act and § 5-245 contain such a clear public policy, the plaintiff has not met its burden of demonstrating a clear violation of that policy. We agree with the defendant.

We begin by setting forth the law that guides our analysis of the plaintiffs public policy claim. “In spite of the general rule that challenges to an arbitrator’s authority are limited to a comparison of the award to the submission, an additional challenge exists under § 52-418 (a) (4) when the award rendered is claimed to be in contravention of public policy.” (Internal quotation marks omitted.) State v. AFSCME, Council 4, Local 387, AFL-CIO, 252 Conn. 467, 474, 747 A.2d 480 (2000). “[W]hen a challenge to a voluntary arbitration award rendered pursuant to an unrestricted submission raises a legitimate and colorable claim of. violation of public policy, the question of whether the award violates public policy requires de novo judicial review. Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., 252 Conn. 416, 429, 747 A.2d 1017 (2000). [Theplaintiffs] challenge raises such a claim. We therefore undertake de novo review of the award.” Groton v. United Steelworkers of America, supra, 254 Conn. 45.

“The public policy exception applies only when the award is clearly illegal or clearly violative of a strong public policy. ... A challenge that an award is in contravention of public policy is premised on the fact that the parties cannot expect an arbitration award approving conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them. . . . When a challenge to the arbitrator’s authority is made on public policy grounds, however, the court is not concerned with the correctness of the arbitrator’s decision but with the lawfulness of enforcing the award. . . . Accordingly, the public policy exception to arbitral authority should be narrowly construed and [a] court’s refusal to enforce an arbitrator’s interpretation of [collective bargaining agreements] is limited to situations where the contract as interpreted would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests. . . . The party challenging the award bears the burden of proving that illegality or conflict with public policy is clearly demonstrated. . . . Therefore, given the narrow scope of the public policy limitation on arbitral authority, the plaintiff can prevail in the present case only if it demonstrates that the [arbitrator’s] award clearly violates an established public policy mandate.” (Citations omitted; internal quotation marks omitted.) Id., 45-46.

The plaintiff asserts that the federal act and the related state statute, § 5-245, embody a clear public policy prohibiting professional employees from receiving overtime. In response, the defendant argues that: (1) there is no such clear public policy prohibiting professional employees from receiving overtime; and (2) the act and § 5-245 establish minimum levels of employment benefits but allow for employees to contract for greater benefits. We agree with the defendant.

The plaintiffs claim of a public policy of prohibiting overtime compensation for professional employees rests on the definition of “salaried employee” that is contained in § 541.118 of title 29 of the Code of Federal Regulations. That section provides for the implementation of the act’s overtime wage exemptions, which are contained in title 29 of the United States Code, § 213. Title 29 of the United States Code, § 213, exempts “any employee employed in a bona fide executive, administrative, or professional capacity” from the provisions that guarantee overtime compensation. The Code of Federal Regulations provides: “An employee will be considered to be paid ‘on a salary basis’ within the meaning of the regulations if under his employment agreement he regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed. Subject to the exceptions provided below, the employee must receive his full salary for any week in which he performs any work without regard to the number of days or hours worked____” 29 C.F.R. § 541.118 (a) (2000). The definition of salaried employee includes provisions that “[a]n employee will not be considered to be ‘on a salary basis’ if deductions from his predetermined compensation are made for absences occasioned by the employer or by the operating requirements of the business”; 29 C.F.R. § 541.118 (a) (1) (2000); and that “[d] eductions may be made . . . when the employee absents himself from work for a day or more . . . .” 29 C.F.R. § 541.118 (a) (2) (2000).

The plaintiff claims that the definition of “salaried employee” containing references to “a day or more” and “a day or longer”; 29 C.F.R. § 541.118 (a) (2) (2000); indicates that status as a salaried employee is assumed and can be negated only by deductions in pay for absences of at least one day. It cites this narrow definition of salaried employee as evidence of the act’s public policy prohibiting professional employees from receiving overtime compensation.

As the party challenging the award, the plaintiff “bears the burden of proving that illegality or conflict with public policy is clearly demonstrated.” (Internal quotation marks omitted.) Groton v. United Steelworkers of America, supra, 254 Conn. 46. The plaintiff, however, points to no specific language in the regulations to support the very narrow definition of salaried employee that it urges. The plaintiff quotes selected portions of the regulations that refer to absences of “a day or more”; 29 C.F.R. § 541.118 (a) (2) (2000); without clearly demonstrating that the regulations require salaried employee status to be based on deductions in pay made for absences of less than one day. The act and the minimum wage laws are remedial statutes, which are to be liberally construed. Antenor v. D & S Farms, 88 F.3d 925, 933 (11th Cir. 1996); West v. Egan, 142 Conn. 437, 442, 115 A.2d 322 (1955). In addition, overtime exemptions are construed narrowly. Shell Oil Co. v. Ricciuti, 147 Conn. 277, 283, 160 A.2d 257 (1960). We conclude, therefore, that the mere references in the Code of Federal Regulations to absences of “a day or more” and “a day or longer”; 29 C.F.R. § 541.118 (a) (2) (2000); do not establish that the definition of salaried employee is so narrow as to demonstrate that the act incorporates a well defined or dominant public policy in favor of prohibiting professional employees from receiving overtime compensation. Moreover, even if we were to agree with the plaintiff that the regulations dictate that salaried employee status is negated only by deductions for absences of less than one day, we are unable to conclude that this definition alone demonstrates a well defined public policy in favor of prohibiting professional employees from receiving overtime compensation. We conclude, therefore, that the plaintiff has not met its burden of clearly demonstrating that the award conflicts with a dominant public policy of the act.

Although the plaintiff focuses primarily on the federal regulations, an examination of the language of the federal overtime exemption statute itself; 29 U.S.C. § 213 (1994); also supports our conclusion that the act does not contain a clear public policy of prohibiting overtime compensation for professional employees. That statute provides in relevant part: “The provisions of section 206 (except subsection [d] in the case of paragraph [1] of this subsection) and section 207 of this title shall not apply with respect to—(1) any employee employed in a bona fide executive, administrative, or professional capacity . . . .” 29 U.S.C. § 213 (a) (1) (1994). Moreover, title 29 of the United States Code, § 207 (a) (1) (1994), requires employers to pay employees “at a rate not less than one and one-half times the regular rate” of pay for any time spent working in excess of forty hours per week. Section 207 establishes, therefore, minimum levels of overtime benefits to which employees are entitled. Section 213 merely exempts professional employees from the overtime compensation mandated by § 207. The explicit statutory language of §§ 207 and 213 does not demonstrate a strong public policy prohibiting overtime compensation for professional employees, but merely exempts professional employees from mandated overtime compensation.

The plaintiff also claims that the award violates the public policy underlying General Statutes § 5-245 (b), which provides in part that the provisions guaranteeing overtime compensation for state employees “shall not be applied with respect to any employee employed in (1) an executive, administrative or professional capacity as such terms may be defined and delimited from time to time by the Commissioner of Administrative Services . . . .” The commissioner of administrative services has not defined or delimited these terms. See Regs., Conn. State Agencies § 5-245-1. In support of its argument that § 5-245 demonstrates a well defined public policy in favor of prohibiting overtime compensation for professional employees, the plaintiff asserts only that the previously quoted portion of § 5-245 is a reference to the federal statutory overtime exemption contained in the act. We interpret the plaintiffs claim, therefore, as asserting that the public policy prohibiting professional employees from overtime compensation is demonstrated in § 5-245 only insofar as § 5-245 incorporates the public policy of the act’s overtime exemption. We concluded previously in part II of this opinion that the plaintiff had failed to meet its burden of demonstrating that the act incorporated a well defined or dominant public policy of prohibiting overtime compensation for professional employees. Because the plaintiff points to no other authority establishing a well defined public policy behind § 5-245, we conclude that the plaintiff has failed to meet its burden of demonstrating that the award clearly violated the public policy of § 5-245.

To the extent that the plaintiff claims that the award violated public policy because the arbitrator misapplied the definition of salaried employee, we decline to undertake judicial review of the arbitrator’s factual determinations in interpreting the terms of the contract. The arbitrator made a factual determination that commission staff attorneys are hourly, rather than salaried employees. “[I]n undertaking de novo review of the plaintiffs public policy claim, we defer to the arbitrator’s interpretation of the agreements .... We therefore do not substitute our own reading of the contract terms for that of the arbitrator, but intervene only to the extent that those terms, as interpreted, violate a clearly established public policy.” (Internal quotation marks omitted.) Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., supra, 252 Conn. 432 n.8. The plaintiff has failed to meet its burden of clearly demonstrating that the award violated a well defined or dominant public policy. We therefore will not substitute our own reading of the contract terms for that of the arbitrator.

In urging that the act and § 5-245 establish a public policy prohibiting professional employees from overtime compensation, the plaintiff misconstrues these statutes. “The principal congressional purpose in enacting the [act] was to protect all covered workers from substandard wages and oppressive working hours, ‘labor conditions [that are] detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.’ 29 U.S.C. § 202 (a).” Barrentine v. Arkansas-Best Freight System, 450 U.S. 728, 739, 101 S. Ct. 1437, 67 L. Ed. 2d 641 (1981). As a result, “[t]he [act] sets a national ‘floor’ in terms of working conditions, in order to protect workers from the substandard wages and excessive hours .... Parties may, of course, contract for additional rights above those guaranteed by the statute.” Rogers v. Troy, 148 F.3d 52, 57 (2d Cir. 1998). The act is violated when employees are paid less than the amount set forth therein. Employers, however, do not violate the act when they provide employees with greater employment benefits than those required under the act. In this case, the arbitration award does not grant commission staff attorneys employment benefits that are below those required by the act. To the contrary, the arbitrator determined that commission staff attorneys are contractually entitled to overtime compensation benefits that exceed the minimum benefits required by the act. Therefore, even if commission staff attorneys are not guaranteed overtime compensation under the act and § 5-245, the award does not violate these acts.

The plaintiff also claims that the arbitrator’s award violated the public policy prohibiting overtime compensation for professional employees because the legislature did not grant approval for paying overtime compensation to commission staff attorneys pursuant to General Statutes § 5-278 (b). Section 5-278 (b) provides in part; that collective bargaining agreements “together with a request for funds necessary to fully implement such agreement and for approval of any provisions of the agreement which are in conflict with any statute or any regulation of any state agency, and any arbitration award” shall be submitted to the legislature for approval. (Emphasis added.) As the plaintiff has not met its burden of demonstrating that the overtime compensation of commission staff attorneys violates any statute, we are unable to conclude that it was necessary to submit the overtime compensation provision of the collective bargaining agreement to the legislature for approval.

The judgment is affirmed.

In this opinion the other justices concurred.

       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).

       The arbitrator issued the following award: “The Agency violated the provisions of Article 18, Section 1 of the [agreement] via its method of compensating [commission] Staff Attorneys working overtime in general, and on November 14, 1994 (Veteran’s Day) specifically.
      “The [plaintiff] shall pay to each [commission] attorney the appropriate Article 18 overtime wage compensation for all hours of work beyond 35 hours per week, as were reasonably necessary to carry out the assigned responsibilities of that attorney; less any hours for which offsetting compensatory time off was allowed. This retroactive relief shall run back to thirty days prior to the date on which the present grievance was filed.
      “Jurisdiction is retained to rule on any matters that the parties may not be able to themselves resolve regarding the specific back pay entitlement of any given [commission] attorney, pursuant to the remedy set forth in the preceding paragraph.”

       General Statutes § 52-418 provides: “(a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.
      “(b) If an award is vacated and the time within which the award is required to be rendered has not expired, the court or judge may direct a rehearing by the arbitrators. Notwithstanding the time within which the award is required to be rendered, if an award issued pursuant to a grievance taken under a collective bargaining agreement is vacated the court or judge shall direct a rehearing unless either party affirmatively pleads and the court or judge determines that there is no issue in dispute.
      “(c) Any party filing an application pursuant to subsection (a) of this section concerning an arbitration award issued by the State Board of Mediation and Arbitration shall notify said board and the Attorney General, in writing, of such filing within five days of the date of filing.”

       General Statutes § 52-417 provides: “At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, to any judge thereof, for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.”

       Title 29 of the United States Code, § 213 (1994), provides in relevant part: “(a) . . . The provisions of section 206 (except subsection [d] in the case of paragraph [1] of this subsection) and section 207 of this title shall not apply with respect to—
      “(1) any employee employed in a bona fide executive, administrative, or professional capacity (including any employee employed in the capacity of academic administrative personnel or teacher in elementary or secondary schools), or in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulations of the Secretary, subject to the provisions of subchapter II of chapter 5 of title 5, except that an employee of a retail or service establishment shall not be excluded from the definition of employee employed in a bona fide executive or administrative capacity because of the number of hours in his workweek which he devotes to activities not directly or closely related to the performance of executive or administrative activities, if less than 40 per centum of his hours worked in the workweek are devoted to such activities) . . . .”

       Article 18, § 1, of the agreement provides in relevant part: “(a) The provisions of the Section shall be interpreted consistent with [General Statutes] Section 5-245 except when specifically provided otherwise.
      “(b) The State will continue to pay overtime to eligible employees at the straight time rate for hours over thirty-five (35) but under forty (40), and at time-and-one-half for hours worked over forty (40), except as provided otherwise in Section 5-245 for employees on rotating shifts and unscheduled positions and classes and except for averaging schedule approved by the Commission of Administrative Services. Except as provided below, the payment of straight time for overtime hours worked over thirty-five (35) but under forty (40) shall not be used as a basis for extending the regular workweek beyond thirty-five (35) hours, provided, however, the State shall retain its right to require overtime under Regulations 5-245-1. Reference in this Article to changes in work schedules shall refer to the regular workweek up to but not beyond forty (40) hours with respect to those classes in which such regular work schedules have already been approved by the Commissioner of Administrative Services for some but not all of the employees in any such class. Whenever possible, volunteers will be solicited before employees are assigned. . . .
      “Call Back Pay. Employees who have left work after the end of their scheduled work shift and who are called back to work shall receive a minimum of four (4) hours of overtime. This provision shall not apply to employees who are called in early prior to their regular starting time and work through their regular shift.
      “(d) Overtime pay shall not be pyramided.
      “(e) When practicable, overtime checks shall be paid no later than the second payroll period following the overtime worked.”

       Article 27, § 3, of the agreement provides: “Overtime—Call-in on a Holiday. (a) Each full-time permanent employee whose job does not require him/her to work on a holiday shall ordinarily receive the holiday off and shall receive his/her regular week’s pay for the week in which the holiday falls. When such employee is called in to work on a holiday, he/she shall receive overtime pay at the applicable rate but shall not receive a compensatory day off unless called in for less than four (4) hours, in which event the employee shall receive a compensatory day off in addition to such overtime pay.
      “(b) Each full-time permanent employee whose job requires him/her to work on a holiday falling on a regular scheduled day off shall receive overtime pay at the applicable rate in addition to the compensatory day off in lieu of such holiday.”

       Article 1, § 1, of the agreement provides: “The State recognizes the Union for the purpose of collective bargaining as the exclusive representative of all the employees in the unit certified by the Connecticut State Board of Labor Relations in Case No. SE-4723, Decision No. 1686D, issued January 10, 1979, including employees hired as Federal Grant participants and, subject to the terms of Article 3, probationary, temporary, durational, provisional and permanent part-time employees.”

       Article 2 of the agreement provides: “This Agreement, upon legislative approval and ratification, (where applicable), supersedes and cancels all prior practices and agreements, whether written or oral, unless expressly stated to the contrary herein, and constitutes the complete and entire agreement between the parties and concludes collective bargaining for its term. The parties acknowledge that during negotiations which resulted in this Agreement, each had the unlimited right and opportunity to make demands and proposals with respect to any subject or matter not removed by law from the area of collective bargaining, and that the understandings and agreements arrived at by the parties after exercise of that right and opportunity are set forth in this Agreement. Therefore, the State and the Union, for the duration of this Agreement, each voluntarily and unqualifiedly waives the right, and each agrees that the other shall not be obligated to bargain collectively with respect to any subject or matter whether or not referred to or covered in this Agreement, even though such subjects or matters may not have been within the knowledge or contemplation of either or both of the [parties] at the time they negotiated or signed this Agreement.”

       Article 19, § 1, of the agreement provides: “The parties herein agree that absent a bona fide occupational qualification neither shall discriminate against any employee on the basis of race, color, religious creed, sex, age, national origin, ancestry, marital status, mental retardation, physical disability, lawful political activity, prior conviction of a crime, a previous mental disorder, or sexual preference.”

       Article 19, § 3, of the agreement provides: “Each employee shall be expected to render a full and fair day’s work in an atmosphere of mutual respect and dignity, free from abusive and/or arbitrary conduct.”

       General Statutes § 5-245 (b) provides: “The provisions of this section shall not be applied with respect to any employee employed in (1) an executive, administrative or professional capacity as such terms may be defined and delimited from time to time by the Commissioner of Administrative Services or (2) a position or class which has been designated as unscheduled by the Commissioner of Administrative Services, or (3) a position the regular work schedule of which requires rotating shifts as approved by the Commissioner of Administrative Services and recorded in his office, which schedule shall not average more than five work days per week over a period of not more than eight weeks.”

       Section 541.118 of title 29 of the Code of Federal Regulations (2000), provides in relevant part: “(a) An employee will be considered to be paid ‘on a salary basis’ within the meaning of the regulations if under his employment agreement he regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed. Subject to the exceptions provided below, the employee must receive his full salary for any week in which he performs any work without regard to the number of days or hours worked. This policy is also subject to the general rule that an employee need not be paid for any work-week in which he performs no work.
      “(1) An employee will not be considered to be ‘on a salary basis’ if deductions from his predetermined compensation are made for absences occasioned by the employer or by the operating requirements of the business. Accordingly, if the employee is ready, willing, and able to work, deductions may not be made for time when work is not available.
      “(2) Deductions may be made, however, when the employee absents himself from work for a day or more for personal reasons, other than sickness or accident. Thus, if an employee is absent for a day or longer to handle personal affairs, his salaried status will not be affected if deductions are made from his salary for such absences. ...”

       General Statutes § 5-278 (b) provides: “Any agreement reached by the negotiators shall be reduced to writing. The agreement, together with a request for funds necessary to fully implement such agreement and for approval of any provisions of the agreement which are in conflict with any statute or any regulation of any state agency, and any arbitration award, issued in accordance with section 5-276a, together with a statement setting forth the amount of funds necessary to implement such award, shall be filed by the bargaining representative of the employer with the clerks of the House of Representatives and the Senate within ten days after the date on which such agreement is reached or such award is distributed. The General Assembly may approve any such agreement as a whole by a majority vote of each house or may reject such agreement as a whole by a majority vote of either house. The General Assembly may reject any such award as a whole by a two-thirds vote of either house if it determines that there are insufficient funds for full implementation of the award. If rejected, the matter shall be returned to the parties for further bargaining. Once approved by the General Assembly, any provision of an agreement or award need not be resubmitted by the parties to such agreement or award as part of a future contract approval process unless changes in the language of such provision are negotiated by such parties. Any supplemental understanding reached between such parties containing provisions which would supersede any provision of the general statutes or any regulation of any state agency or would require additional state funding shall be submitted to the General Assembly for approval in the same manner as agreements and awards. If the General Assembly is in session, it shall vote to approve or reject such agreement or award within thirty days after the date of filing. If the General Assembly is not in session when such agreement or award is filed, it shall be submitted to the General Assembly within ten days of the first day of the next regular session or special session called for such purpose. The agreement or award shall be deemed approved if the General Assembly fails to vote to approve or reject such agreement or award within thirty days after such filing or submission. The thirty-day period shall not begin or expire unless the General Assembly is in regular session. For the purpose of this subsection, any agreement or award filed with the clerks within thirty days before the commencement of a regular session of the General Assembly shall be deemed to be filed on the first day of such session.”