author:
Callahan, J.
      Peters, C. J., with whom Berdon, J.,

text:
    State of Connecticut v. Jose J. Gonzalez
    (14401)
    Peters, C. J., Callahan, Glass, Borden and Berdon, Js.
    Argued March 25
    decision released July 7, 1992

      Deborah L. DelPrete, deputy assistant public defender, with whom were Richard Emanuel, assistant public defender, and, on the brief, G. Douglas Nash, public defender, and Suzanne Zitser and Kent Drager, assistant public defenders, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Stephen J. Sedensky III, assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Jose J. Gonzalez, was charged in a substitute information with the crimes of attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), assault in the first degree in violation of General Statutes § 53a-59 (a) (1), carrying a pistol without a permit in violation of General Statutes §§ 29-35 and 29-37 (b), and having a weapon in a motor vehicle in violation of General Statutes § 29-38. The trial court granted the defendant’s motion for acquittal on the second count of the information charging assault in the first degree. A jury convicted the defendant of the remaining three counts. The trial court thereafter rendered judgment in accordance with the verdict and sentenced the defendant to a term of imprisonment of twenty years, suspended after fourteen years, and probation for a period of five years on the conviction of attempted murder. The trial court also imposed concurrent terms of four years each on the convictions of carrying a pistol without a permit and having a weapon in a motor vehicle.

The defendant appealed to the Appellate Court claiming that the trial court improperly: (1) failed to investigate or inquire into an allegation of possible juror misconduct; (2) charged the jury concerning the attempt element of the crime of attempted murder; and (3) denied the defendant’s motion for judgment of acquittal on the basis that the evidence produced was insufficient to support his convictions.

The Appellate Court determined that there was an inadequate factual record to decide the issue of juror misconduct and remanded the case to the trial court for a hearing to ascertain whether there had, in fact, been juror misconduct and, if so, whether the defendant had been prejudiced. State v. Gonzalez, 25 Conn. App. 433, 436-40, 596 A.2d 443 (1991). The Appellate Court also concluded that there had been sufficient evidence produced at the defendant’s trial to sustain his convictions; id., 443-45; and that the trial court had properly instructed the jury concerning the attempt element of attempted murder. Id., 440-43.

The defendant thereafter petitioned this court for certification. We granted certification limited to the following question: “Did the Appellate Court properly conclude that the trial court properly instructed the jury on attempt liability under General Statutes § 53a-49 (a) (1)?” State v. Gonzalez, 220 Conn. 928, 598 A.2d 1099 (1991).

We conclude that the Appellate Court was incorrect when it determined that the trial court had properly instructed the jury on attempt liability pursuant to § 53a-49 (a) (1). The jury, in light of the evidence, should have been instructed on attempt liability pursuant to § 53a-49 (a) (2). Because, however, any impropriety in the trial court’s instructions concerning attempt liability was rendered harmless by other portions of the court’s charge, we affirm the Appellate Court’s judgment.

The facts leading to the defendant’s arrest and conviction are set forth in considerable detail in the Appellate Court’s opinion. State v. Gonzalez, supra, 25 Conn. App. 435-36. For present purposes, suffice it to say that the jury found that the defendant was involved in an altercation with the victim over a traffic incident and shot the victim in the throat with a .25 caliber handgun. The bullet entered the victim’s neck under his chin and lodged behind his left ear. The victim was hospitalized for two to four days and suffered a permanent loss of feeling in the left side of his neck.

The substitute long form information that charged the defendant with attempted murder did not specify upon which subdivision of § 53a-49 (a) the defendant’s culpability was predicated. The trial court, tracking the information, initially instructed the jury by referring to the entire text of § 53a-49 (a), thereby indicating to the jury the applicability of both subdivisions (a) (1) and (2) to the charge of attempted murder.

During its subsequent deliberations, the jury requested that it be reinstructed as to the definition of attempted murder. The trial court, in responding, first read the statutory definition of murder and explained the element of intent. The court then discussed the requirements necessary for a jury to find that there had been an attempt pursuant to § 53a-49 (a) (1). Next, when the court began to instruct the jury on the requirements for the finding of an attempt pursuant to § 53a-49 (a) (2) the following colloquy ensued:

“The Court: This second part of the attempt statute provides that a person is guilty of attempting to commit a crime if, acting with the kind of mental state required for the commission of the crime, he intentionally does or omits to do anything which, under the circumstances as he believed them to be, is an act or omission constituting a substantial step in the course of conduct planned to culminate in his commission of the crime. It’s charged that way. But I don’t think that section applies very well. It says to do with a plan, carrying out, steps.

“Assistant State’s Attorney: I’m satisfied.

“The Court: I think if you just limit your consideration to the first part as I’ve given it to you, you’ll have to determine whether the state has met its obligation there. The distinction is that, in this section, it’s talking about an act or omission in carrying out a plan to culminate in the commission of the crime of murder. This has more to do with those individual, itemized factors which I have given to you previously. And I think if you look at them, you would disregard them as being in this case. That’s lying in wait, enticing. That’s not in this case.

“The question here is whether—if this gentleman was at the scene and was involved in the conflict, your question is whether or not he, at that moment, was armed. Knowing that he was and that he knowingly and intentionally pulled out a gun and shot the victim with the intent to take the victim’s life, the fact that it wasn’t accomplished is the basis of the attempt to commit murder. Okay? You may resume.”

The defendant did not object to the trial court’s supplemental instructions. He argued on appeal to the Appellate Court, however, that his constitutional rights had been violated because the trial court’s supplemental instructions removed from the jury’s consideration subdivision (a) (2) of § 53a-49, which was, in reality, the only subdivision of the statute that had application to the facts of his case. He argues that, consequently, he was convicted of having committed an attempted murder pursuant to a subdivision, subdivision (a) (1) of § 53a-49, for which there was no evidentiary foundation. State v. Gonzalez, supra, 25 Conn. App. 440-41.

We agree with the defendant that the trial court incorrectly focused the jury’s consideration on whether the defendant had committed an attempt pursuant to § 53a-49 (a) (1). An instruction on that subdivision should be given when the evidence indicates that a perpetrator failed to accomplish or complete all the elements of a particular crime solely because the “attendant circumstances” were not as the perpetrator believed them to be, rendering the commission of the crime impossible. Examples of a violation of § 53a-49 (a) (1) would be a pickpocket’s failure to complete a larceny because his hand was in an empty pocket, or an attempt by an accused to bribe a juror but mistakenly approaching a nonjuror. United States v. Conway, 507 F.2d 1047, 1050 (5th Cir. 1975); Commonwealth v. Henley, 504 Pa. 408, 410-11, 474 A.2d 1115 (1984); W. LaFave & A. Scott, Substantive Criminal Law § 6.3; see Conn. Gen. Stat. Ann. § 53a-49, commission comment (West 1983); see also D. Borden, Connecticut Penal Code Reference Manual (1971) § 5, pp. 5-5-5-6. “This is consistent with the general rule applicable to inchoate offenses. Though the circumstances may be misapprehended, if one ‘purposely engages in conduct which would constitute the elements of the crime if the attendant circumstances were as he believes them to be’ the actor is guilty of criminal attempt. Model Penal Code, § 5.01 (1) (a).” United States v. Brantley, 777 F.2d 159, 164 (4th Cir. 1985), cert. denied, 479 U.S. 822, 107 S. Ct. 90, 93 L. Ed. 2d 42 (1986).

On the other hand, a court should charge on § 53a-49 (a) (2) when the evidence indicates that a perpetrator has done something which, under the circumstances as he believed them to be, is an act constituting a substantial step in a course of conduct planned to culminate in his commission of a particular crime. In other words, this subdivision] “is directed at the more common attempt situations [wherein] the actor’s conduct falls short of the completed offense for reasons other than impossibility.” D. Borden, supra, p. 5-6; see State v. Gilchrist, 24 Conn. App. 624, 638-39 n.9, 591 A.2d 131, cert. denied, 219 Conn. 905, 593 A.2d 131 (1991).

In the present case, where the defendant was charged with attempted murder and the evidence revealed simply an altercation and a shooting, the only relevant question was whether the defendant, with the intent to cause the victim’s death, had taken a substantial step, strongly corroborative of his purpose, in a course of conduct planned to culminate in the accomplishment of his intended result. The question to be resolved, therefore, is whether the trial court’s charge, although imperfect, adequately conveyed to the jury the necessary elements of attempted murder pursuant to §§ 53a-49 (a) (2) and 53a-54a (a). We conclude that it did.

At the end of its supplemental charge, the trial court explicitly instructed the jury that in order to convict the defendant of attempted murder it must find proven that the defendant was armed, that he knowingly and intentionally produced a gun during his altercation with the victim, and that he shot the victim with the intent to take the victim’s life. Those instructions encompassed all the elements necessary to constitute a criminal attempt to commit murder pursuant to §§ 53a-49 (a) (2) and 53a-54a (a). They were, moreover, the last words that the jurors heard prior to resuming their deliberations and, consequently, those words were fresh in their minds when they returned to the jury room. Arroyo v. Jones, 685 F.2d 35, 39 (2d Cir.), cert. denied, 459 U.S. 1048, 103 S. Ct. 468, 74 L. Ed. 2d 617 (1982); State v. Williams, 199 Conn. 30, 41, 505 A.2d 699 (1986).

In order to convict the defendant in compliance with the trial court’s supplemental instructions, the jury must have found proven beyond a reasonable doubt that the defendant shot the victim with the intent to cause the victim’s death. It cannot seriously be argued that if the defendant shot the victim with the intent to cause his death, that the action taken, the shooting of the victim, was not a substantial step in a course of conduct planned, i.e., intended or designed, to culminate in the commission of the crime of murder, which step was strongly corroborative of the defendant’s criminal purpose. The fact that the trial court mislabeled the subdivision of § 53a-49 (a) that applied to the factual situation was harmless beyond a reasonable doubt. State v. Golding, 213 Conn. 233, 240, 567 A.2d 823 (1989).

The judgment of the Appellate Court is affirmed.

In this opinion Glass and Borden, Js., concurred.

Peters, C. J., with whom Berdon, J.,

joins, concurring in the judgment. I respectfully disagree with the conclusion that the trial court effectively, although imperfectly, instructed the jury about the necessary elements of attempted murder pursuant to General Statutes §§ 53a-49 (a) (2) and 53a-54a (a). With respect to § 53a-49 (a) (2), the trial court, as the majority opinion notes, expressly charged the jury: “That’s not in this case.” With deference, I cannot accede to the proposition that this unequivocal instruction was in any way diluted by the court’s supplemental instruction about the state’s burden of proof with respect to attempted murder, because the supplemental instruction did not advert to either of the relevant subdivisions of § 53a-49 (a). To my mind, the only basis for upholding the defendant’s conviction of attempted murder must therefore be that the state adduced sufficient evidence so that a jury could find him guilty, in accordance with the court’s instructions, of a violation of § 53a-49 (a) (1). Because I am persuaded that the record demonstrates the existence of such evidence, I concur in the judgment of the court.

“[T]his court has taken the position that ‘[i]t is essential to any orderly trial that the jury be presumed, in the absence of a fair indication to the contrary, to have followed the instructions of the court as to the law.’ State v. Bausman, 162 Conn. 308, 314, 294 A.2d 312 (1972); State v. Barber, 173 Conn. 153, 157, 376 A.2d 1108 (1977); State v. Coleman, 167 Conn. 260, 268, 355 A.2d 11 (1974); State v. Smith, 156 Conn. 378, 383, 242 A.2d 763 (1968). The majority does not point to anything in the record to show that this well settled principle should not apply in this case .... It must be remembered that ‘[ujnless we proceed on the basis that the jury will follow the court’s instructions where those instructions are clear and the circumstances are such that the jury can reasonably be expected to follow them, the jury system makes little sense.’ Delli Paoli v. United States, 352 U.S. 232, 242, 77 S. Ct. 294, 1 L. Ed. 2d 278 (1957); Bruton v. United States, [391 U.S. 123, 135, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968)]. That makes good sense to me here particularly where the record shows nothing to the contrary.” State v. Couture, 194 Conn. 530, 570, 482 A.2d 300 (1984) (Healey, J., dissenting), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985); see also State v. Negron, 221 Conn. 315, 331, 603 A.2d 1138 (1992).

Nothing in the record of this case suggests that the jury did not follow the unambiguous instruction of the trial court that limited the jury’s consideration to whether the defendant had committed an attempt pursuant to § 53a-49 (a) (1). The trial court, after discussing § 53a-49 (a) (2), told the jury that “I don’t think that section applies very well” and that “[t]hat’s not in this case,” and instructed it to “just limit your consideration to the first part as I’ve given it to you.” I do not understand by what alchemy this instruction can be converted into a “mislabeled” instruction to the jury to consider the defendant’s guilt pursuant to § 53a-49 (a) (2).

I am equally unpersuaded that the court’s supplemental instruction that “in order to convict the defendant of attempted murder it must find proven that the defendant was armed, that he knowingly and intentionally produced a gun during his altercation with the victim, and that he shot the victim with the intent to take the victim’s life,” would have informed the jury that it should redirect its attention to § 53a-49 (a) (2). The majority opinion emphasizes that the supplemental instructions were “the last words that the jurors heard prior to resuming their deliberations and, consequently, those words were fresh in their minds when they returned to the jury room.” This reasoning suggests that rather than deliberately disregarding the court’s more specific instructions, the jury would simply have forgotten instructions that it had heard only thirty seconds or so earlier. It seems to me altogether more likely that, consistently with the facts of record, the jury understood, remembered and faithfully followed the trial court’s instructions in toto, and convicted the defendant under § 53a-49 (a) (1).

The sufficiency of the evidence to sustain the defendant’s conviction of attempted murder must, therefore, stand or fall by comparing the evidence adduced at trial with the evidentiary requirements of § 53a-49 (a) (1). No authority or analysis supports the majority opinion’s implicit conclusion that, because the conduct with which the defendant was charged plainly violated § 53a-49 (a) (2), it could not also have violated § 53a-49 (a) (1). Our case law is to the contrary. Although the two subdivisions of the attempt statute are distinct, there is room for overlap between them in certain cases. “Once the mental state required under the attempt statute in § 53a-49 (a) is found, there are two subdivisions] of that statute under which a defendant may be found guilty. Under the evidence, the jury could have found the defendant guilty under both, although one would have been sufficient.” State v. Green, 194 Conn. 258, 275, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985). This court has held that a single action may violate both subdivisions of § 53a-49 (a). See id., 276-77; see also State v. Gilchrist, 25 Conn. App. 104, 110-11, 593 A.2d 507, cert. denied, 220 Conn. 905, 593 A.2d 970 (1991).

On the evidence in the present case, the jury was entitled to conclude that, at the moment he fired the shot, the defendant mistakenly believed that his gun was pointed at a vital part of the victim’s neck, so that pulling the trigger would suffice to complete the crime by killing or inflicting a mortal wound on the victim. If the jury was entitled to infer from the defendant’s actions that he intended to kill his victim—a finding that would be required in order to convict under either subdivision of the statute—it was also entitled to infer that, before pulling the trigger, the defendant believed that the single shot would be fatal. Afterward, the defendant appears to have perceived no need to fire another. The jury could reasonably have found that the defendant’s act was both an attempt based on mistake of fact in violation of § 53a-49 (a) (1), because he was mistaken about the attendant circumstances, and a substantial step toward completion of the crime in violation of § 53a-49 (a) (2), because the victim might well have died of his wound had he not received prompt medical treatment. Although the trial court should not have withdrawn § 53a-49 (a) (2) from the jury’s consideration, the defendant cannot complain of an instruction that was more favorable to him than the one to which he was entitled.

Because a jury is presumed to have followed its instructions, and because I agree with the Appellate Court that the evidence was sufficient to support a conviction under § 53a-49 (a) (1), I respectfully concur in the result.

       General Statutes § 53a-49 provides in pertinent part: “CRIMINAL attempt: sufficiency of conduct; renunciation as defense, (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
      “(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) unless it is strongly corroborative of the actor’s criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law: (1) Lying in wait, searching for or following the contemplated victim of the crime; (2) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (3) reconnoitering the place contemplated for the commission of the crime; (4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; (5) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; (6) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (7) soliciting an innocent agent to engage in conduct constituting an element of the crime.”
      General Statutes § 53a-54a (a) provides: “murder, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       The remand order provided that if the trial court found prejudicial juror misconduct that deprived the defendant of an impartial jury and a fair trial, the judgment was to be set aside and a new trial ordered. If, on the other hand, the trial court found that there was no prejudicial juror misconduct, the trial court’s judgment was to be affirmed. State v. Gonzalez, 25 Conn. App. 433, 440, 596 A.2d 443 (1991).

       Although the trial court’s initial charge was somewhat unclear as to how both subdivisions (a) (1) and (2) of General Statutes § 53a-49 applied to the factual situation revealed at trial, it nevertheless instructed on the elements of both, and clearly instructed the jury that in order to convict the defendant it must find proven beyond a reasonable doubt that he had acted with the specific intent to cause the victim’s death.

       The Appellate Court determined that, although the defendant did not file a request to charge or take an exception to the trial court’s supplemental charge, it would review the defendant’s claim under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because the defendant’s claim “goes to the improper instruction of an element of the crime, and the record is sufficient for such a review.” State v. Gonzalez, 25 Conn. App. 433, 441 n.4, 596 A.2d 443 (1991).


source: Caselaw Access Project

author: Berdon, J.

license: Public Domain

text:
    Red Maple Properties v. Zoning Commission of the Town of Brookfield et al.
    (14341)
    Shea, Callahan, Glass, Borden and Berdon, Js.

      Argued January 16
    decision released June 18, 1992

      Vincent P. McCarthy, for the appellant (plaintiff).

      James J. Carroll, for the appellees (named defendant et al.).
   Berdon, J.

The principal issue in this appeal is whether a real estate developer, who sought a permit from a local zoning commission, had a property interest protected by the substantive component of the due process clause of the federal constitution. The plaintiff, Red Maple Properties, brought suit against the defendants, the zoning commission of the town of Brookfield (commission) and its members, pursuant to 42 U.S.C. § 1983 claiming that its civil rights had been violated by the actions of the defendants in preventing the use of its property as a multi-unit condominium project after the plaintiff had received approval for two units. After the close of the plaintiffs case-in-chief, the trial court granted the defendants’ motion for a directed verdict and this appeal followed from the judgment rendered thereon. We now affirm the judgment of the trial court.

The relevant facts are as follows. The plaintiff is a limited partnership formed for the purpose of developing a parcel of land consisting of approximately 133 acres, along Route 133 in Brookfield. The plaintiff, through its agent and general partner, Gull Development Corporation, entered into option agreements to purchase two pieces of land, which together comprised the 133 acre parcel.

The plaintiff sought to develop the parcel in phases for an expandable condominium project totalling 208 units. On January 13,1983, the plaintiff filed a formal application with the defendants for approval of two units, known as “phase I,” which was submitted as an application for design review approval. In February, 1983, the plaintiff, through its engineer, Paul Carroccio, and its representatives, Joseph and Susan Fritz, met informally with the then commission chairman, Alan Sniffin, and a commission member, William Schappert, to discuss the application. The plaintiff claimed at trial that at this meeting Sniffin and Schappert had given it “conceptual approval” for the entire 206 unit project, provided it complied with the zoning regulations in effect at that time.

A public hearing on the plaintiffs application for phase I was conducted on April 14,1983. At the hearing, Sniffin stated that the commission was reviewing the development potential of 206 units on the plaintiff’s land. On April 20,1983, Sniffin sent the plaintiff’s engineers a letter seeking additional information about the project, including data regarding wetlands protection and water supplies and the designation of local access drives. On June 23,1983, the defendants approved the application for design review with respect to the two units.

On July 12,1983, a lawsuit, which was subsequently withdrawn in 1985, was filed by some Brookfield residents appealing the decision of the defendants granting approval for phase I. In late 1984, the conservation commission proposed an amendment to § 242-404D of the Brookfield zoning regulations, which provides for multifamily dwellings, including condominiums. The proposal sought, in effect, to place a “cap” on the number of multifamily dwellings allowed in the town. The defendants held public hearings, at which the plaintiff appeared and testified against the proposed amendment. On May 23, 1985, the defendants approved a modification of the regulation limiting multifamily dwelling projects to 150 units. Prior to the change in the regulations, the plaintiff had not sought approval of any additional phases of its planned project. On October 24, 1985, the plaintiff sent the commission a letter inquiring whether its project would be “grandfathered,” or exempted, under the new regulation. Schappert responded that under any new application submitted by the plaintiff, the commission would exempt only the two units, which had previously been approved.

The plaintiff brought the present § 1983 action in Superior Court claiming that its civil rights were violated by the defendants because the amendment to the regulation was arbitrary and capricious and was intended to thwart the plaintiffs entire project, which the plaintiff claimed had been given “conceptual approval.” The plaintiff claimed at trial that it was entitled to approval of the entire project, and that its entitlement was a protected property interest sufficient to trigger federal substantive due process rights. In its amended complaint, the plaintiff also claimed it was deprived of its procedural due process rights. The plaintiff also pleaded but subsequently withdrew a claim of equitable estoppel.

The trial court granted the defendants’ motion for a directed verdict upon concluding that the defendants were vested with broad discretion as to whether to approve an application for design review, and that this broad discretion manifestly overcame and defeated any claim that the plaintiff had established an entitlement allowing it to invoke the constitutional protections of the fourteenth amendment. The trial court summarily dismissed the plaintiffs claim of “conceptual approval.”

The gravamen of the plaintiff’s appeal is that it has a property interest in the zoning approval for its entire project, and that the defendants’ actions arbitrarily and capriciously deprived it of its property interest in the approval, which violated its federal substantive due process rights. The plaintiff also claims on appeal that the trial court improperly: (1) found that the plaintiff had not advanced a procedural due process claim; and (2) excluded as irrelevant certain testimony of the plaintiff’s project engineer, Paul Carroccio. We agree with the trial court that the plaintiff did not have a property interest protected by the substantive component of the due process clause of the federal constitution, and, therefore, we affirm the judgment of the trial court. We also reject the other claims of the plaintiff.

I

At the outset, we note that although we do not generally favor directed verdicts; John T. Brady & Co. v. Stamford, 220 Conn. 432, 440, 599 A.2d 370 (1991); “[a] verdict may properly be directed where the decisive question is one of law. Rich v. Dixon, 153 Conn. 52, 61-62, 212 A.2d 417 (1965); Sedita v. Steinberg, 105 Conn. 1, 5, 134 A. 243 (1926).” Gottesman v. Aetna Ins. Co., 177 Conn. 631, 634, 418 A.2d 944 (1979). Therefore, if the trial court properly determined that, as a matter of law, the actions of the defendants had not violated the plaintiff’s substantive due process rights, then the trial court was correct in directing the verdict because “ ‘[i]t is merely reaching more speedily and directly a result which would inevitably be reached in the end.’ People’s Savings Bank v. Borough of Norwalk, 56 Conn. 547, 556, 16 A. 257 (1888); Simmons v. Southern Connecticut Gas Co., 7 Conn. App. 245, 250, 508 A.2d 785 (1986).” Petriello v. Kalman, 215 Conn. 377, 383, 576 A.2d 474 (1990).

The issue of whether aland developer has a protected property interest in the issuance of a permit that affords it substantive due process rights is one of first impression for this court. Therefore, we will look to the federal courts and, more specifically, to the Second Circuit Court of Appeals, for guidance. The disparate analytical treatment of the issue in the federal courts is thoroughly outlined in RRI Realty Corporation v. Incorporated Village of Southampton, 870 F.2d 911 (2d Cir.), cert. denied, 493 U.S. 893, 110 S. Ct. 240, 107 L. Ed. 2d 191 (1989) (RRI). In RRI, Judge Newman, writing for the majority, began the court’s discussion of the issue by stating that the “[fjederal courts have followed a somewhat uneven course in explicating the rationale for and the extent to which the substantive component of the Due Process Clause of the Fourteenth Amendment protects landowners in disputes with local agencies empowered to limit the permissible uses of their property.” Id., 914. In tracing the genesis of such a claim, the court in RRI stated that “[t]he initial effort to subject local land use decisions to constitutional scrutiny involved challenges to new zoning restrictions imposed upon property owners. The Supreme Court’s first consideration of such a challenge, though occurring in an era when substantive due process was often a formidable protection against governmental regulation, met with significant rebuff. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 2d 303 (1926). The Supreme Court ruled that zoning regulations will survive substantive due process challenge unless they are ‘clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.’ Id. at 395, 47 S. Ct. at 121.” Id., 915.

Federal courts, when faced with early cases involving property owners seeking a change in the zoning regulations, applied the deferential standard of Village of Euclid without stating whether the property interest at stake was the land owned by the plaintiff or the zone change for which the plaintiff was applying. Id. Although the issue in Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972), was an interest in employment and not land, and involved procedural due process rights rather than substantive due process rights, the United States Supreme Court expanded the concept of property to include not only what is owned, but also what is sought. The court stated that to be a protected property right, there must be “a legitimate claim of entitlement.” Id., 577.

It is at this point that the federal courts have diverged in their analysis of substantive due process challenges. Some courts, including the Second Circuit Court of Appeals, have relied on Roth and inquired whether the plaintiff has a “ ‘clear entitlement’ to the approval he was seeking from the land use regulating body.” RRI, supra, 915. In Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 59 (2d Cir. 1985), the court determined that the plaintiff had a “ ‘clear entitlement’ ” to a permit when, “absent the alleged denial of due process, there is either a certainty or a very strong likelihood that the application would have been granted.” (Emphasis added.) The court affirmed the dismissal of the plaintiff’s claim of a protected property interest in the permit sought by it because the licensing authority responsible for the issuance of that permit had broad discretion either to grant or to deny the permit. “Basically, [the court’s] focus is on the extent of the issuing agency’s discretion to grant or deny the permit in question.” Natale v. Ridgefield, 927 F.2d 101, 105 (2d Cir. 1991). The Second Circuit has adhered to the “property interest analysis” and “Yale Auto Parts and its progeny have committed [the Second] Circuit to the ‘entitlement’ inquiry in land use regulation cases.” RRI, supra, 917-18.

“Many post-1972 land regulation decisions, however, have not pursued the Roth analysis in land regulation cases. Instead of inquiring as to the plaintiff's degree of entitlement to what he sought, these decisions have implicitly assumed that the pertinent property interest is the property the plaintiff owns and simply examined whether the action of local regulators in denying an application for the proposed use of the land was arbitrary and capricious. . . . Bello [v. Walker, 840 F.2d 1124, 1129 (3d Cir.), cert. denied, 488 U.S. 851, 109 S. Ct. 134, 102 L. Ed. 2d 107 (1988)], is a clear example of a court focusing exclusively on whether the local land use regulator acted arbitrarily and capriciously without inquiry as to whether the protected property interest is in the land the plaintiff owns and is seeking to use or in the permit he requires for his intended use . . . .” RRI, supra, 916.

Although Judge Newman in RRI raised the question of whether it is appropriate to adhere to the Roth entitlement theory, he recognized that the Second Circuit is committed to it. We, likewise, will dip our oars into the same waters by adopting the Roth entitlement analysis for a claim of a § 1983 substantive due process violation for land use cases.

In fashioning our analysis, “the entitlement test of Yale Auto Parts—‘certainty or a very strong likelihood’ of issuance—must be applied with considerable rigor. Application of the test must focus primarily on the degree of discretion enjoyed by the issuing authority, not the estimated probability that the authority will act favorably in a particular case. . . . Yale Auto Parts rejected the claim of a property interest in the permit being sought because of the discretion of the local regulating body. Even if in a particular case, objective observers would estimate that the probability of issuance was extremely high, the opportunity of the local agency to deny issuance suffices to defeat the existence of a federally protected property interest. The ‘strong likelihood’ aspect of Yale Auto Parts comes into play only when the discretion of the issuing agency is so narrowly circumscribed that approval of a proper application is virtually assured; an entitlement does not arise simply because it is likely that broad discretion will be favorably exercised.” (Citations omitted.) RRI, supra, 918. Because the focus of the inquiry is on the degree of discretion of the authority, the question of whether an applicant has a property interest is normally a matter of law for the trial court. Id. Because it is a matter of law, the trial court’s determination is subject to a de novo review. See Aetna Life & Casualty Co. v. Bulaong, 218 Conn. 51, 58, 588 A.2d 138 (1991).

In this case, the trial court first concentrated on the permit that the plaintiff had actually obtained—that is, approval of the design review application for two units. The court in its memorandum of decision set out the testimony of the plaintiffs witnesses who conceded that the defendants had discretion in granting a design review application. The trial court concluded that the plaintiff had not demonstrated a “clear entitlement” to the permit because “as the linchpin of the determination of an entitlement, the evidence here unequivocally establishes that broad discretion was vested within the zoning commission of the town of Brookfield on the question of the approval of an application for design review.” The trial court stated that the defendants’ broad discretion “manifestly [overcame] and [defeated] any claim” of an entitlement that would have invoked the constitutional protections of the fourteenth amendment. We agree with the trial court.

As for the plaintiff’s claim that the defendants had given it “conceptual approval” for the entire project, the plaintiff argues that this was indicative of a clear entitlement for the entire project because such approval was the understanding of the parties and not “merely a unilateral hope or expectation”; Yale Auto Parts, Inc. v. Johnson, supra, 58; on its part. The trial court found, and a review of the record confirms, that there is no provision or definition of “conceptual approval” in the Brookfield zoning regulations. The trial court then dismissed the “conceptual approval” as “nothing more than an amorphous phantom lurking somewhere in a newly created or hopefully created category in an attempt to raise a favorable endorsement (approval) of some sort.” We agree with the trial court and note, moreover, that the plaintiff conceded at oral argument that even if there were a provision for conceptual approval in the Brookfield zoning regulations, such approval must be given at a formal meeting of the whole commission and was not bestowed through the informal communication of some of its members.

II

The plaintiff also claims that the defendants violated its procedural due process rights. We find this claim to be without merit for two reasons. First, although the plaintiff’s amended complaint alleged a procedural due process violation, the plaintiff admitted at trial the following: “Your Honor has asked me repeatedly what our claim is and I’ve repeatedly said substantive due process. . . . [T]he primary basis for this case is substantive due process.” The plaintiffs counsel went on to say that he had “read no cases involving a developer and procedural due process rights . . . [and] I’ll admit, I have no cases.” Although the trial court did not specifically order the plaintiff to strike the procedural due process claim from its amended complaint, the trial court stated, “No question about it, if there is any basis for [the plaintiff’s claim], it’s substantive due process.”

Second, the plaintiff’s procedural due process claim is nothing more than its substantive due process claim in a different guise. In making its procedural due process claim on appeal, the plaintiff alleges that “[o]nce the plaintiff obtained its June 23, 1983 approval, it expected that it at least had the right to come back before the defendant commission with its final plans for subsequent phases and have those phases judged in the light of the regulations in effect at the time of the June 1983 approval.” The plaintiff provided no authority for this claim that its procedural due process rights were violated as a result of not having been exempted from the new regulations.

Ill

The plaintiff’s last claim on appeal is that the trial court abused its discretion in excluding portions of Carroccio’s testimony as irrelevant. Carroccio was asked on direct examination to state his understanding of the procedure for obtaining the commission’s approval on the basis of conversations he had had with two of the commission members. The commission objected on the ground of relevancy and the jury was excused while the plaintiff made an offer of proof. After the offer of proof was made, the trial court sustained the commission’s objection. Because we have already stated that the informal conversations of any commission member or members could not in any way bind the commission as to how it would subsequently act on a given application, we conclude that the trial court was correct in excluding this portion of Carroccio’s testimony on the ground that the testimony was irrelevant.

The judgment is affirmed.

In this opinion the other justices concurred.

       The present action was originally brought also against the conservation commission of the town of Brookfield and all of its members. It was, however, withdrawn as to all defendants except the Brookfield zoning commission and its members, Richard Amorossi, Joseph Herbstritt, Joseph Kavalek, Alfons Ostermeier, William Schappert and George Steward.

       Title 42 of the United States Code, § 1983 provides in pertinent part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

       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 § 4023 and General Statutes § 51-199 (c).

       Revised § 242-404D (2) of the Brookfield zoning regulations provides in part: “(a) Multifamily dwelling projects in excess of twenty-four (24) dwelling units shall only be located in areas where the main access drives thereto access directly upon Whisconier Road and Route 133.
      “(b) Multifamily dwelling projects in excess of forty-eight (48) dwelling units shall only be located in areas where the main access drives thereto access directly upon Federal Road.
      “(c) No multifamily dwelling project shall contain more than one hundred fifty (150) dwelling units.”

       The same analysis was applied in Scott v. Greenville County, 716 F.2d 1409 (4th Cir. 1983), upon which the trial court in the present case relied. In Scott, in determining that the plaintiff had a clear entitlement to a building permit, the court first asked whether the plaintiff had a ‘ ‘ ‘protectable property interest in the permit’ sufficient to trigger federal due process guarantees.” Id., 1418.

       In RRI Realty Corporation v. Incorporated Village of Southampton, 870 F.2d 911, 917-18 (2d Cir. 1989), Judge Newman, writing for the majority of the court, stated the following: “It is not readily apparent why land regulation cases that involve applications to local regulators have applied the Roth entitlement test to inquire whether an entitlement exists in what has been applied for—whether a zoning variance, a business license, or a building permit—instead of simply recognizing the owner’s indisputable property interest in the land he owns and asking whether local government has exceeded the limits of substantive due process in regulating the plaintiffs use of his property by denying the application arbitrarily and capriciously. . . . Indeed, the entitlement inquiry will not often aid the analysis in this context. ... In any event, [Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54 (2d Cir. 1985),] and its progeny have committed [the Second] Circuit to the ‘entitlement’ inquiry in land use regulation cases.”

       In deciding to adopt the analysis of the Second Circuit Court of Appeals, we recognize that “[t]he decisions of the federal circuit in which a state court is located are entitled to great weight in the interpretation of a federal statute. This is particularly true in 42 U.S.C. S 1983 cases, where the federal statute confers concurrent jurisdiction on the federal and state courts. It would be a bizarre result if this court [adopted the ‘arbitrary and capricious’ analysis] when in another courthouse, a few blocks away, the federal court, being bound by the Second Circuit rule, required [the ‘Roth entitlement test’]. We do not believe that when Congress enacted the concurrent jurisdiction provision of $ 1983 that it intended to create such a disparate treatment of plaintiffs depending on their choice of a federal or state forum.” Tedesco v. Stamford, 24 Conn. App. 377, 385, 588 A.2d 656 (1991), rev’d on other grounds, 222 Conn. 233, 610 A.2d 574 (1992) (in Tedesco, the $ 1983 issue before the Appellate Court was whether the plaintiffs counsel must have submitted contemporaneous time records to recover attorney’s fees or if reconstructed time sheets were sufficient).

       The trial court focused on the following testimony: 1. Questions propounded to Paul Carroccio, the plaintiffs engineer:
      “Q. Now, the application was a design and review application?
      “A. Design review.
      “Q. Design review. Can you explain to me what that was in Brookfield in 1983—January ‘83?
      “A. Basically, it was a requirement of the regulations, that for any commercial, industrial, multifamily project, you had to meet the design review requirements. Which included site plan review, the aesthetics—
      “The Court: And, he emphasized aesthetics—
      “Q. What do you mean by aesthetics, Paul?
      “A. Whether or not the project fit aesthetically with the characteristics—

        “Q. You mean, did the zoning commission have discretion of not approving it, if it was an eye sore?
      “A. To some degree, yes
      * ** *
      “Q. So, if they don’t like it, they can reject it; right-on the design review?
      “[Carroccio]: It sounds arbitrary but I suppose they could.”
      2. Questions propounded to William Schappert, commission member:

        “A. Again, this is a design review application and there is a special permit and there are quite a few discretionary items—broad discretionary items—within the design review process. And, one thing that we had to consider, was the adequacy of the water supply for something more than two units. And we specifically said—I think, specifically said, you have to give us something more than talks about the water budget. And, water budget is normally meant to be, tell us what capacity is required for this project. In other words, if you’re going to have so many people on the site, how much gallonage per day constitutes the capacity required for the budget and then all the engineering information is to be provided where you’re going to get that capacity from. We could get it from annual rainfall or you would get it from septic re-generation or something like that. So, as far as the data, we said you have to provide us within something to make a judgment on the adequacy of that. And a water budget analysis sounded like something that would demonstrate that.
      “Q. Is that a water budget analysis for the entire site?
      “A. I believe so.”
      3. Questions propounded to Neil Marcus, an attorney for the plaintiff:
      “Q. Now, you know the difference under the zoning regulations—the Brookfield zoning regulations—between site plan approval and design review; do you not?
      “A. Sure.
      “Q. And, you would agree with me that design review—approval—is a completely different type of approval and that it is very, very encompassing—all encompassing?
      “A. It includes the site plan review.
      “Q. It includes the site plan review and many other items; doesn’t it?
      “A. You bet.
      “Q. And, when the zoning commission considers design review, given the nature of the Brookfield zoning regulations, it has broad discretion on what it thinks is relevant to review and how it reviews it. Isn’t that correct?
      “A. They have very broad discretion.”

       For the offer of proof, Carroccio testified, outside the presence of the jury, that the commission members implied that the plaintiff would get “conceptual approval for the project, the project being the full site. And that in order to get final approvals for each phase, [the plaintiff] would have to submit details for each phase prior to constructing that phase.” Carroccio was then asked what he understood would happen if the plaintiff obtained its “other approvals and then applied for the subsequent phases.” He answered that “unless [the plaintiff] could not meet the requirements of the regulations, those phases would be approved.” Finally, Carroccio testified that he had not understood, from his conversations with the commission members, that the commission could change the regulations so that the plaintiff would be precluded from filing subsequent applications.


author:
Peters, C. J.
      Berdon, J.,

text:
    Bruce A. Bouley et al. v. City of Norwich et al.
    (14356)
    Peters, C. J., Glass, Borden, Berdon and F. X. Hennessy, Js.

      Argued March 26
    decision released June 18, 1992

      Andrew J. O’Keefe, with whom were Michael J. Walsh and Marc S. Mandell, for the appellants (defendants).

      DonaldR. Beebe, with whom was David J. O’Dea, for the appellees (plaintiffs).
   Peters, C. J.

The principal issue in this appeal is whether an employee who is injured in an automobile accident while operating his employer’s vehicle during the course of his employment is precluded by General Statutes § 31-284 (a) from collecting uninsured motorist benefits from his self-insured employer. The plaintiff, Bruce A. Bouley, was injured when the police vehicle he was operating collided with another vehicle. After exhausting the third party tortfeasor’s automobile liability coverage, the plaintiff, who had also received workers’ compensation benefits, brought an action for uninsured motorist benefits against his self-insured employer, the police department of the city of Norwich and the city of Norwich (city). The trial court granted the city’s motion for summary judgment. The Appellate Court reversed the trial court’s decision. Bouley v. Norwich, 25 Conn. App. 492, 595 A.2d 884 (1991). We granted certification to appeal and now reverse the judgment of the Appellate Court.

The record discloses the following undisputed facts. The plaintiff was a police officer employed by the city of Norwich. On August 31, 1985, while operating a municipal police vehicle during the course of his employment, he sustained injuries in a collision with a third party tortfeasor. The plaintiff received $18,000 in workers’ compensation benefits from the city. He also made a claim for damages against the tortfeasor and recovered, by way of settlement, the sum of $20,000, which represented the full amount of the tortfeasor’s automobile liability insurance. The city was entitled to reimbursement for the workers’ compensation benefits paid to the plaintiff. See General Statutes (Rev. to 1985) § 31-293. Because the plaintiff’s economic and medical damages allegedly exceeded $20,000, he sought uninsured motorist benefits under the insurance policy covering the police vehicle the plaintiff had been operating at the time of the accident. The city denied the plaintiff's claim for uninsured motorist benefits. The plaintiff then commenced this action for damages against the city alleging that its failure to provide uninsured motorist benefits violated General Statutes (Rev. to 1985) § 38-175c (a) (2). See footnote 6, supra.

The city moved for summary judgment on the basis that the plaintiff had received workers’ compensation benefits, and that, pursuant to § 31-284 (a), those benefits represented the plaintiff’s exclusive remedy as to the city. The trial court granted the city’s motion for summary judgment in reliance on the Appellate Court’s decision in Ross v. New Haven, 19 Conn. App. 169, 561 A.2d 456, cert. granted, 212 Conn. 814, 565 A.2d 536 (1989), which had held that a police officer injured in the course of employment was barred from seeking uninsured motorist benefits from his self-insured employer.

The Appellate Court reversed the decision of the trial court upon concluding that, notwithstanding § 31-284 (a) of the Workers’ Compensation Act, the city was required to provide uninsured motorist benefits, as well as workers’ compensation benefits, to the plaintiff for injuries incurred during the course of the plaintiff’s employment. Bouley v. Norwich, supra, 502. The court indicated that the purpose of the Workers’ Compensation Act, to provide the exclusive tort remedy for an employee against an employer, was not compromised by a claim to pay statutorily mandated uninsured motorist benefits. Id. The court further reasoned that in Wilson v. Security Ins. Co., 213 Conn. 532, 569 A.2d 40, cert. denied, 498 U.S. 814, 111 S. Ct. 52, 112 L. Ed. 2d 28 (1990), a case with almost identical facts, this court had concluded that it was permissible for an employee to receive uninsured motorist benefits in addition to workers’ compensation benefits. Although the employer in Wilson was not self-insured, the Appellate Court stated that “an injured employee of a self-insured employer is entitled to receive the same benefits as an employee of an employer that is not self-insured,” and reversed the judgment of the trial court granting the city’s motion for summary judgment. Bouley v. Norwich, supra, 502. In doing so, the Appellate Court stated that its decision in Ross v. New Haven, supra, which was relied upon by the trial court, had been “effectively overruled by Wilson.” Bouley v. Norwich, supra, 495. This appeal followed.

The city argues that the exclusivity provision of § 31-284 (a) was triggered in this case by the undisputed fact that the plaintiff was entitled to and did receive workers’ compensation benefits for injuries sustained during the course of his employment. The exclusivity provision, according to the city, bars the plaintiff, in the circumstances of this case, from uninsured motorist coverage even though the city is required by statute to maintain such coverage.

The plaintiff makes a two part argument in support of his contention, to the contrary, that uninsured motorist claims against his self-insured employer do not fall within the prohibition of § 31-284 (a). First, the plaintiff claims that § 31-284 (a) is inapplicable because he is suing the city, not in negligence, but pursuant to a statutorily created right to recover uninsured motorist benefits and pursuant to the city’s contractual obligation to provide uninsured motorist coverage. Second, the plaintiff contends that he is suing the city in its capacity as an insurer, not as an employer, and thus the action is not barred by § 31-284 (a).

We agree with the city. We therefore reverse the judgment of the Appellate Court.

I

The Workers’ Compensation Act and the statute mandating uninsured motorist coverage appear in separate chapters of the General Statutes. The first Workers’ Compensation Act was enacted in this state in 1913; Public Acts 1913, c. 138, pt. A, § 2; see also Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 539-40, 494 A.2d 555 (1985); A. Grillo, “Fifty Years of Workmen’s Compensation—An Historical Review,” 38 Conn. B J. 239,246 (1964); while § 38-175c requiring uninsured motorist coverage on all automobile liability insurance policies, was enacted fifty-four years later in 1967. Public Acts 1967, c. 510, § 4. Neither statutory scheme expressly refers to the other.

“The purpose of the workmen’s compensation statute is to compensate the worker for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer.” Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979); see also Perille v. RaybestosManhattan-Europe, Inc., supra, 541; Plainville v. Travelers Indemnity Co., 178 Conn. 664, 669, 425 A.2d 131 (1979). Under the Workers’ Compensation Act, both the employer and the employee have relinquished certain rights to obtain other advantages. The employee no longer has to prove negligence on the part of the employer, but, in return, he has to accept a limited, although certain, recovery. See Mingachos v. CBS, Inc., 196 Conn. 91, 97, 491 A.2d 368 (1985). The employer, in turn, guarantees compensation to an injured employee in return for the exclusivity of the workers’ compensation liability to its employees. See Pokorny v. Getta’s Garage, 219 Conn. 439, 455, 594 A.2d 446 (1991); Jett v. Dunlap, supra; Velardi v. Ryder Truck Rental, Inc., 178 Conn. 371, 376, 423 A.2d 77 (1979); see generally J. King, “The Exclusiveness of an Employee’s Workers’ Compensation Remedy Against His Employer,” 55 Tenn. L. Rev. 405, 406-408 (1988); A. Larson, “The Nature and Origins of Workmen’s Compensation,” 37 Cornell L.Q. 206 (1952).

Section 31-284 (a), known as the exclusivity provision of the Workers’ Compensation Act, provides that “[a]n employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment .... All rights and claims between employer and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment as aforesaid are abolished other than rights and claims given by this chapter . . . .” This provision does not, however, preclude an injured employee from bringing a claim against a third party tortfeasor responsible for such injury. Rather, the legislature has specifically allowed for such a cause of action. See footnote 5, supra.

The plaintiff does not dispute that he was injured during the course of his employment and that he has received workers’ compensation benefits. He claims that he is nonetheless entitled to uninsured motorist benefits from the city because the exclusivity of the Workers’ Compensation Act is inapplicable to a claim for uninsured motorist benefits that derives from statutorily mandated uninsured motorist coverage and a contractual obligation to provide such coverage undertaken by the city when it became self-insured.

A

The Appellate Court originally concluded that a claim for uninsured motorist benefits was within the purview of the Workers’ Compensation Act in Ross v. New Haven, supra, 171. It emphasized that § 31-284 (a) “has been repeatedly and uniformly construed by the courts of this state to exclude further recovery from the employer by an employee who has received workers’ compensation benefits,” and held that an employee, injured in the course of his employment, was barred from receiving uninsured motorist benefits from his employer. Id. The Appellate Court subsequently determined, however, in Bouley v. Norwich, 25 Conn. App. 492, 495, 595 A.2d 884 (1991), and CNA Ins. Co. v. Colman, 25 Conn. App. 651, 653, 595 A.2d 949 (1991), that Ross was no longer controlling following this court’s decision in Wilson v. Security Ins. Co., supra. We do not agree.

The issue presented in Wilson was not whether a claim for uninsured motorist benefits brought against an employer for injuries sustained in the course of employment was precluded by the Workers’ Compensation Act. Rather, the principal issue in that case was “whether coverage for uninsured motorists contained in a fleet automobile liability policy may be combined or ‘stacked’ in determining the total amount of coverage available to a single claimant.” Id., 533. The only issue in Wilson that concerned workers’ compensation was whether the insurance commissioner was empowered to offset workers’ compensation payments against uninsured motorist limits. Id., 536-39. The plaintiff had raised the issue on cross appeal claiming that the trial court had erred in offsetting his workers’ compensation award against his uninsured motorist award. We held that “[i]f damages are paid pursuant to the workers’ compensation law, the uninsured motorist coverage may be reduced accordingly.” Id., 538. The exclusivity provision of the Workers’ Compensation Act was neither raised nor addressed in Wilson. Consequently, the issue of whether a claim for uninsured motorist benefits is prohibited by § 31-284 (a) is one of first impression for this court.

B

The plaintiff advances the argument that the language of the statute and the cases that have interpreted the exclusive remedy provision limit its application to common law claims against an employer. Because his claim is statutory and contractual in nature, he contends that it is not barred by the exclusivity of the Workers’ Compensation Act.

Contrary to the plaintiff’s representations, neither the language of the statute nor the weight of judicial authority supports such a limited interpretation of § 31-284 (a). The statute does not distinguish between common law tort claims, statutory claims and contract claims. It states that “[a]ll rights and claims between employer and employees . . . arising out of personal injury . . . sustained in the course of employment . . . are abolished . . . (Emphasis added.) In clear and unambiguous terms, the statute provides that liability under the Workers' Compensation Act is an employer’s exclusive liability to an employee for a personal injury that occurs during the course of his employment.

This court has repeatedly stated that workers’ compensation is an employee’s only remedy for injuries that arise during the course of his employment. See Pokorny v. Getta’s Garage, supra, 455; Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988); Perille v. Raybestos-Manhattan-Europe, Inc., supra, 541-42; Velardi v. Ryder Truck Rental, Inc., supra, 376. The exclusivity provision “operatejs] as a total bar to actions brought by employees against their employers for job related injuries.” Sgueglia v. Milne Construction Co., 212 Conn. 427, 433, 562 A.2d 505 (1989); see also Sharp v. Mitchell, 209 Conn. 59, 66, 546 A.2d 846 (1988); Panaro v. Electrolux Corporation, 208 Conn. 589, 599, 545 A.2d 1086 (1988). While we have stated that the exclusivity provision bars “tort action[s] for work related injuries”; see Mingachos v. CBS, Inc., supra, 97; Jett v. Dunlap, supra, 217; the clear language of the statute is not so limited in its application. Moreover, we have previously concluded that § 31-284 (a) barred a statutory action against an employer. In Perille v. Raybestos-Manhattan-Europe, Inc., supra, 535, we held that the exclusivity of the Workers’ Compensation Act precluded an employee, allegedly injured during the course of his employment, from bringing a direct action against his employer for breach of the statutory duty to “provide his employees with a safe place to work.” See also Mingachos v. CBS, Inc., supra, 100-108.

One commentator has noted that “[t]he exclusiveness rule relieves the employer not only of common-law tort liability, but also of statutory liability under all state and federal statutes, as well as of liability in contract and in admiralty, for an injury covered by the compensation act.” 2A A. Larson, Workmen’s Compensation Law (1992) § 65.30, p. 12-21. In addition, courts from other jurisdictions have ruled that their workers’ compensation statutes bar actions brought pursuant to various state and federal statutes. See, e.g., Ferreira v. Panama Canal Co., 215 F. Sup. 726 (D.D.C. 1963) (the Federal Employers’ Liability Act); Veterans of Foreign Wars Post 7320 v. Sheffield, 398 So. 2d 262 (Ala. 1981) (state Employer’s Liability Act); Gordon v. Burgess Construction Co., 425 P.2d 602 (Alaska 1967) (Defective Machinery Act); McCarty v. Marshall, 51 Ill. App. 3d 842, 366 N.E.2d 1052 (1977) (Structural Work Act); Turner v. Southeastern Pennsylvania Transportation Authority, 256 Pa. Super. 43, 389 A.2d 591 (1978) (No-Fault Automobile Insurance Act). The statutory or contractual basis for uninsured motorist coverage does not, therefore, abrogate the exclusivity of the Workers', Compensation Act for personal injuries that arise during the course of employment.

The plaintiff asserts, however, that the policy underlying mandatory uninsured motorist coverage, to place the injured party in the same position as if he had been injured by an insured motorist; Harvey v. Travelers Indemnity Co., 188 Conn. 245, 249, 449 A.2d 157 (1982); obligates the city to pay him uninsured motorist benefits for his injuries. The policy would be compromised, he asserts, by denying benefits to employees injured in the course of their employment.

While uninsured motorist coverage has been mandated by statute, we have recognized that such coverage is less an independent source of recovery than it is a “safety net.” Section 38-175c “does not require that uninsured motorist coverage be made available when the insured has been otherwise protected, such as when the uninsured motorist is only one of two or more joint tortfeasors, or when the uninsured motorist has other resources available to protect the insured. Nor does the statute provide that the uninsured motorist coverage shall stand as an independent source of recovery for the insured, or that the coverage limits shall not be reduced under appropriate circumstances.” Roy v. Centennial Ins. Co., 171 Conn. 463, 472, 370 A.2d 1011 (1976); see also Wilson v. Security Ins. Co., supra, 538. When an employee is eligible for and has received workers’ compensation benefits, the policies underlying uninsured motorist coverage are not sufficiently compelling to override the exclusivity of the Workers’ Compensation Act. While a self-insured employer must maintain uninsured motorist coverage, such insurance does not compel the provision of coverage to an employee covered by workers’ compensation.

We are also unpersuaded by the plaintiff’s claims that, in mandating uninsured motorist coverage, the legislature had either created an exception to the exclusivity of the Workers’ Compensation Act or had impliedly repealed the exclusivity of the act as it pertains to claims for uninsured motorist benefits. The express language of § 31-284 (a) relieves an employer of all liability for personal injuries beyond the Workers’ Compensation Act and there is no language within § 38-175c indicating a legislative intent to create an exception to the exclusivity of the act. Where the legislature has intended an exception to § 31-284 (a), it has expressly so provided. See, e.g., General Statutes § 31-293a (exempting from the Workers’ Compensation Act an action against a fellow employee for his wilful or malicious acts or his negligent operation of a motor vehicle). Moreover, § 31-284 (a) exempts from its coverage only rights and claims “given by this chapter.” The statutory provisions concerning workers’ compensation appear in chapter 568 of the General Statutes, while statutory provisions concerning uninsured motorist coverage appear in chapter 700 of the General Statutes. Construing the mandatory uninsured motorist coverage as an “exception” to the Workers’ Compensation Act is irreconcilable with the express language of § 31-284 (a).

“The rule disfavoring implied repeals is a ‘well established principle of statutory construction.’ Southern Connecticut Gas Co. v. Housing Authority, 191 Conn. 514, 521, 468 A.2d 574 (1983). The legislature is presumed to have acted with the intent to create a consistent body of law. Warner v. Leslie-Elliott Constructors, Inc., 194 Conn. 129, 134, 479 A.2d 231 (1984). If two statutes appear to be in conflict but can be construed as consistent with each other, then the court should give effect to both. Hirschfeld v. Commission on Claims, 172 Conn. 603, 607, 376 A.2d 71 (1977). ‘[EJnactments by the General Assembly are presumed to repeal earlier inconsistent ones to the extent that they are in conflict.’ Southern Connecticut Gas Co. v. Housing Authority, supra. Because repeal by implication is generally disfavored, however, the principle applies only when the relevant statutes ‘cannot stand together.’ Id.; Hirschfeld v. Commission on Claims, supra, 606-607.” Dugas v. Lumbermens Mutual Casualty Co., 217 Conn. 631, 641, 587 A.2d 415 (1991).

Only one interpretation of §§ 31-284 (a) and 88-175c enables the statutes to “stand together.” Our conclusion that an employee is limited to the recovery of workers’ compensation benefits from his employer for injuries that occur during the course of his employment does not render the two statutes inconsistent. The Workers’ Compensation Act remains an employee’s exclusive remedy against an employer for workplace injuries, while uninsured motorist coverage remains mandatory on all automobile liability insurance policies. Because workers’ compensation is a bar to uninsured motorist recovery only when the employee has already been made whole by workers’ compensation, the “safety net” function of uninsured motorist insurance coverage remains unimpaired. The opposite conclusion, however, that the legislature, in enacting a statutory scheme mandating uninsured motorist coverage on all automobile liability insurance policies, had intended that an employee injured during the course of his employment could collect uninsured motorist benefits from his employer, would render the two statutes inconsistent. We will therefore not presume that the subsequent enactment of a statute mandating uninsured motorist coverage impliedly repealed the exclusivity of the Workers’ Compensation Act.

Because the legislature in § 31-284 (a) has unambiguously provided that the Workers’ Compensation Act is to be an employee’s exclusive remedy for “[a]ll rights and claims between employer and employees” arising out of work-related personal injuries, it is for the legislature, and not the courts, to carve out an exception to the act for uninsured motorist benefits. See Mingachos v. CBS, Inc., supra, 106. “We recognize that over the years the legislature has worked out a complex statutory scheme in promulgating workers’ compensation statutes and that ‘[a]n integral part of this complex structure is the accepted proposition that an employee surrenders other claims for the certainty of the exclusive workers’ compensation remedy.’ Boyle v. Breme, [187 N.J. Super. 129, 132, 453 A.2d 1335 (1982)]. Such a ‘comprehensive, well thought out legislative scheme should not be tinkered with by the courts.’ ” Panaro v. Electrolux Corporation, supra, 605; see also J. King, supra, 411 (“[A]ny serious threat to the integrity and continued survival of the workers’ compensation system must be viewed with concern. Abrogation of the exclusive remedy rule by expansion or creation of new exceptions to the rule could pose such a threat.”).

We are aware that the four jurisdictions that have considered whether an employee who has received workers’ compensation benefits is precluded from receiving uninsured motorist benefits from his self-insured employer or his insurance carrier have decided that the employee is not so precluded. See Heavens v. LaClede Gas Co., 755 S.W.2d 331 (Mo. App. 1988) (self-insured employer); Christy v. Newark, 102 N. J. 598, 510 A.2d 22 (1986) (self-insured employer); Boris v. Liberty Mutual Ins. Co., 356 Pa. Super. 532, 515 A.2d 21 (1986) (commercial insurance company); William v. Newport News, 240 Va. 425, 397 S.E.2d 813 (1990) (self-insured employer). We are, however, unpersuaded by the reasoning of those cases. We are constrained by the express language of our Workers’ Compensation Act to preclude an employee’s recovery of uninsured motorist benefits from an employer for his work-related injuries.

II

We now turn to the plaintiffs second claim that, in providing uninsured motorist coverage as a self-insured municipality, the city shed the protection of the Workers’ Compensation Act. Essentially, the plaintiff asserts that he was suing the city, not as an “employer,” but as an “insurer.” As § 31-284 (a) is applicable only to actions against an employer, the plaintiff argues that the present action for uninsured motorist benefits against the city in its capacity as insurer was not barred.

This effort to invoke the “dual capacity” doctrine for self-insured employers is unavailing. We have previously considered and expressly rejected the dual capacity doctrine in the context of a claim that a company-employed nurse was acting as an independent contractor in treating a plaintiff employee. Panaro v. Electrolux Corporation, supra, 600, 606. In doing so, we recognized that the weight of authority in nearly all jurisdictions had rejected similar dual capacity arguments. Id., 596-97.

While Panaro did not address the aspect of the dual capacity doctrine asserted by the plaintiff in the present appeal,, the dual capacity doctrine in general has been found unpersuasive by commentators and courts alike. See, e.g., 2A A. Larson, supra, § 72.81 (a), p. 14-229 (the dual capacity doctrine “could go a long way toward demolishing the exclusive remedy principle” when “one considers how many such added relations an employer might have in the course of a day’s work”); J. King, supra, 492-96 (“It is easy to see how the dual capacity genie, once allowed out of its bottle, could quickly devour the exclusive remedy rule completely.” Id., 496.). In rejecting the dual capacity doctrine, the Tennessee Supreme Court succinctly stated that “[t]he employer is the employer; not some person other than the employer. It is that simple.” McAlister v. Methodist Hospital of Memphis, 550 S.W.2d 240, 246 (Tenn. 1977).

Courts and commentators have also specifically criticized the application of the dual capacity doctrine to self-insured employers. Professor Larson refers to attempts to assert a dual capacity on the basis of an employer’s status as a self-insured entity as “rather far-out” and notes that even California, which at one time had accepted the dual capacity doctrine, has subsequently rebuffed such attempts. 2A A. Larson, supra, § 72.89, p. 14-287; see Denman v. Duval Sierrita Corporation, 27 Ariz. App. 684, 685, 558 P.2d 712 (1976) (theory that self-insured employer acted in a dual capacity “is without support in the case law or logic”); Williams v. International Paper Co., 129 Cal. App. 3d 810, 815-16, 181 Cal. Rptr. 342 (1982) (“By becoming self-insured, the employer simply does not create an “extra” employer status or a relationship that is distinct from that of employer and employee’ ”; self-insurance did not transform the employer “into two legal entities where there was but one before.”); Swain v. J.L. Hudson Co., 60 Mich. App. 361, 230 N.W.2d 433 (1975) (court dismissed suit brought against employer in capacity as self-insurer as barred by exclusivity provision of workers’ compensation act).

We will not circumvent the clear language of § 31-284 (a) by invoking the fiction of the dual capacity doctrine for self-insured employers. The city was not transformed into something other than an employer for purposes of the Workers’ Compensation Act because it chose to become self-insured. Due to the cost of liability insurance premiums, it is conceivable that many employers, including municipalities like the city of Norwich, might choose to provide their own automobile liability insurance coverage pursuant to General Statutes § 38a-371 (c). Excluding such employers from the protection of the Workers’ Compensation Act with regard to uninsured motorist benefits would impinge upon their statutory right to be self-insured and upon the exclusivity of the Workers’ Compensation Act.

Moreover, in this court’s decision in the companion case of CNA Ins. Co. v. Colman, 222 Conn. 769, 610 A.2d 1257 (1992), issued today, we concluded that an employer’s automobile liability insurance provider was entitled to the same immunity from suit for uninsured motorist benefits for work-related injuries as the employer. We cited the increased costs that would ultimately be borne by the employer for benefits paid by its insurer and concluded that, for purposes of § 31-284 (a) and uninsured motorist benefits, the employer’s insurer was the “alter ego” of its insured. Id., 773-74. If an employer’s automobile liability insurance provider is deemed an “employer” within the meaning of § 31-284 (a), it would be illogical and inconsistent to conclude that the self-insured employer is anything other than an “employer.”

The judgment is reversed and the case is remanded to the Appellate Court with direction to affirm the judgment of the trial court.

In this opinion Glass, Borden and F.X. Hennessy, Js., concurred.

Berdon, J.,

dissenting. I agree with the Appellate Court that the exclusivity provision of the Workers’ Compensation Act; General Statutes (Rev. to 1985) § 31-284; does not bar an employee injured in an automobile accident while in the course of his employment from receiving uninsured motorist benefits from his self-insured employer. Any other result would simply confuse tort law with contract law—both of which, of course, are birds of a different feather.

The majority claims that the Appellate Court’s decision was predicated, in part, on a misreading of Wilson v. Security Ins. Co., 213 Conn. 532, 569 A.2d 40, cert. denied, 498 U.S. 814, 111 S. Ct. 52, 112 L. Ed. 2d 28 (1990). Wilson was one reason advanced by the Appellate Court; however, the crux of the Appellate Court’s decision was not Wilson, but its analysis of the purposes and policies of workers’ compensation benefits and uninsured motorist benefits. Judge Landau, writing a well reasoned and analytical decision for the Appellate Court, distinguished between these two bodies of law and concluded that § 31-284 does not preclude the right to uninsured motorist coverage whether or not the employer was self-insured. Bouley v. Norwich, 25 Conn. App. 492, 502, 595 A.2d 884 (1991).

The Workers’ Compensation Act provides an exclusive remedy for an employee for work related injuries on the basis of tort law; General Statutes (Rev. to 1985) § 31-284; Mingachos v. CBS, Inc., 196 Conn. 91, 97, 491 A.2d 368 (1985). “In a word . . . [workers’ compensation] statutes compromise an employee’s right to a common law tort action for work related injuries in return for relatively quick and certain compensation.” (Emphasis added.) Id. The Workers’ Compensation Act, however, does not preclude an employee from bringing a claim against a third party tortfeasor who contributed to the injury for which he or she is receiving workers’ compensation. General Statutes (Rev. to 1985) § 31-293. Indeed, § 31-293 authorizes an employee who is injured in an automobile collision during the course of employment to bring suit against the third party tortfeasor who caused the injury. Automobile insurance laws mandate that all automobile insurance policies, including policies that cover vehicles owned by employers and operated by employees, must provide uninsured motorist coverage so that the insured is able to recover for the damages he or she would have been able to recover from the uninsured tortfeasor. General Statutes § 38a-336; Harvey v. Travelers Indemnity Co., 188 Conn. 245, 249, 449 A.2d 157 (1982). Although the law allows the owner of an automobile to be a self-insurer, it requires the self-insurer “to pay basic reparations benefits and the liabilities covered by residual liability insurance and to perform all other obligations imposed” upon an insurer. General Statutes (Rev. to 1985) § 38-327 (c). While an employee may operate an employer’s vehicle in the course of his or her employment, that employee is an insured and enjoys a contractual right to uninsured motorist coverage as mandated by statute.

The plaintiff employee brought the present action seeking to enforce his contractual right to recover damages he sustained as a result of the negligence of a third party tortfeasor—rights created by the defendant employer’s statutory obligation to provide uninsured motorist protection. This action is simply not precluded by the Workers’ Compensation Act. To hold otherwise is as farfetched as to conclude that an employee would be precluded under the Workers’ Compensation Act from bringing an action against his employer over a contractual term of his employment.

Furthermore, such a holding undermines the statutory requirement that an employer provide uninsured motorist coverage. In footnote 11 of its opinion, the majority suggests that it is not absurd to require the city to provide uninsured motorist coverage, even though employees are precluded from benefitting from such coverage. The majority takes comfort in the fact that other individuals, such as a passenger in the car who is not an employee, might be eligible for benefits. The possible benefit to other individuals, however, does absolutely nothing to help the insured employee recover for the damages he or she would have been able to recover from the uninsured tortfeasor, which was the purpose of General Statutes § 38a-336. Harvey v. Travelers Indemnity Co., supra, 249. Section 38a-336 does not distinguish between employees and nonemployees; rather, it gives all insureds—employees and nonemployees alike—a contractual and statutorily mandated right to uninsured motorist coverage. See id., 249-51.

Indeed, the majority is unable to point to any other jurisdiction to support its conclusion that the Workers’ Compensation Act bars an employee’s recovery of uninsured motorist benefits from an employer for work related injuries. On the contrary, other jurisdictions that have had occasion to consider the issue have held that their workers’ compensation act is not a bar. The New Jersey Supreme Court in Christy v. Newark, 102 N. J. 598, 510 A.2d 22 (1986), a case strikingly similar to this, ruled that its workers’ compensation act did not preclude the employee from recovering uninsured motorist benefits from his self-insured employer. In Christy, the plaintiff, a police officer, was injured when a “hit-and-run” vehicle struck the police vehicle that the officer was operating in the course of his employment. See also Heavens v. LaClede Gas Co., 755 S.W.2d 331 (Mo. App. 1988) (self-insured employer was bound to provide uninsured motorist coverage to employee injured in the course of employment); Boris v. Liberty Mutual Ins. Co., 356 Pa. Super. 532, 515 A.2d 21 (1986) (a claim for uninsured motorist benefits addresses the wrongs of a third party, not the wrongs of the employer or coworkers, and thus takes such claims outside the scope of workers’ compensation “immunity”); William v. Newport News, 240 Va. 425, 397 S.E.2d 813 (1990) (the “exclusivity provision” does not prevent an employee from exercising rights granted under the uninsured motorist provision).

Not only did the court in Christy hold that the New Jersey workers’ compensation act does not bar an employee from recovering uninsured benefits from his self-insured employer, but it also noted that such uninsured coverage does not give the employee a windfall, but merely recoverable damages. The employer is entitled to reimbursement from the damages paid by the third party tortfeasor or pursuant to the uninsured motorist. coverage. Christy v. Newark, supra, 609. Likewise, the employer in Connecticut, subject to the provision of § 31-293, would also be entitled to reimbursement. Indeed, in the present case, the defendant was reimbursed by approximately $18,000 out of the $20,000 paid to the plaintiff by the third party tortfeasor’s insurer, leaving the plaintiff $2000 to. cover his other damages which were not compensated for under workers’ compensation.

Accordingly, I dissent.

       General Statutes § 31-284 provides in pertinent part: “(a) An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as follows, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between employer and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment as aforesaid are abolished other than rights and claims given by this chapter, provided nothing herein shall prohibit any employee from securing, by agreement with his employer, additional benefits from his employer for such injury or from enforcing such agreement for additional benefits.” Although this statute was amended, effective July 1,1991, by Public Acts 1991, No. 91-32, §§ 7, 41, the changes are not pertinent to this appeal.

       In this opinion, the term uninsured motorist benefits encompasses underinsured motorist benefits as well.

       The named plaintiffs wife is also a plaintiff in this case. In this decision, “plaintiff” refers to the named plaintiff.

       Certification was granted limited to the following question: “Is an employee who is injured in the course of his employment and who has received workers’ compensation benefits barred from receiving uninsured or underinsured motorist benefits from his self-insured employer pursuant to General Statutes § 31-284 (a)?” Bouley v. Norwich, 220 Conn. 915, 597 A.2d 332 (1991).

       General Statutes (Rev. to 1985) § 31-293 provides in pertinent part: “When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of such injured employee against such other person, but such injured employee may proceed at law against such person to recover damages for such injury; and any employer having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such other person to recover any amount that he has paid or has become obligated to pay as compensation to such injured employee. . . . If such employer and employee join as parties plaintiff in such action and any damages are recovered, such damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of such recovery, after the deduction of reasonable and necessary expenditures, including attorneys’ fees, incurred by the employee in effecting such recovery. ... If the damages, after deducting the employee’s expenses as provided above, are more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse him for his claim, and the excess shall be assessed in favor of the injured employee. . . .”

       Pursuant to General Statutes (Rev. to 1985) S§ 38-327 (now $ 38a-371), 38-326 (now § 38a-370) and 38-175c (now § 38a-336), the city, as a self-insurer, was required to provide uninsured motorist coverage on its automobiles.

        General Statutes (Rev. to 1985) § 38-327 provided in pertinent part: “(c) Subject to approval of the insurance commissioner the security required by this chapter may be provided by self-insurance by filing with the commissioner in satisfactory form: (1) A continuing undertaking by the owner or other appropriate person to pay basic reparations benefits and the liabilities covered by residual liability insurance and to perform all other obligations imposed by this chapter; (2) evidence that appropriate provision exists for the prompt and efficient administration of all claims, benefits, and obligations provided by this chapter; and (3) evidence that reliable financial arrangements, deposits or commitments exist providing assurance for payment of basic reparations benefits and the liabilities covered by residual liability insurance and all other obligations imposed by this chapter substantially equivalent to those afforded by a policy of insurance that would comply with this chapter. A person who provides security under this subsection is a self-insurer. A municipality may provide the security required under this chapter by filing with the commissioner a notice that it is a self-insurer.” (Emphasis added.)
      General Statutes (Rev. to 1985) § 38-326 provided in pertinent part: “(b) Residual liability insurance shall afford coyerage which satisfies the requirements of sections 38-175a to 38-175h, inclusive.” (Emphasis added.)
      General Statutes (Rev. to 1985) § 38-175c provided: “(a) (1) Every [automobile liability insurance] policy shall provide insurance, herein called uninsured motorist coverage, in accordance with such regulations [as the insurance commissioner adopts], with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom, provided each insurer licensed to write automobile liability insurance in this state shall provide such uninsured motorists coverage with limits requested by the named insured upon payment of the appropriate premium, but such insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily injury coverage of such policy issued to such named insured. No insurer shall be required to provide uninsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured, or (B) to any insured occupying an uninsured or underinsured motor vehicle owned by such insured. Every such policy issued on or after October 1, 1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. With respect to any claim submitted to arbitration on or after October 1,1983, the arbitration proceeding shall be conducted by a single arbitrator if the amount in demand is forty thousand dollars or less or by a panel of three arbitrators if the amount in demand is more than forty thousand dollars.
      “(2) Notwithstanding any provision of this section to the contrary, every such policy issued or renewed on and after July 1,1984, shall provide uninsured¿ motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless the insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. Such written request shall apply to all subsequent renewals unless changed in writing by the insured.
      “(b) (1) An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage, exceed the limits of the insured’s uninsured motorist coverage.
      “(2) For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subdivision (1) of subsection (b) of this section.”

       After this court granted certification to hear the plaintiffs appeal in Ross, the appeal was withdrawn.

       The legislature has expressly provided, however, that an employer is not responsible to pay workers’ compensation benefits to an employee for personal injuries caused by the “wilful and serious misconduct of the injured employee or by his intoxication.” General Statutes § 31-284 (a).

       General Statutes § 31-284 (a) does provide that “nothing herein shall prohibit any employee from securing, by agreement with his employer, additional benefits from his employer for such injury or from enforcing such agreement for additional benefits.” (Emphasis added.) See also Pokorny v. Getta’s Garage, 219 Conn. 439, 460-61, 594 A.2d 446 (1991). There is absolutely no evidence in the record of any contractual undertaking between the city and Bouley with respect to uninsured motorist benefits. As the Appellate Court noted in Bouley v. Norwich, 25 Conn. App. 492, 496, 595 A.2d 884 (1991), every automobile liability insurance policy must provide uninsured motorist coverage and as such, coverage would exist regardless of bargaining between employer and employee. We will not presume that, through the adoption of legislation mandating uninsured motorist coverage, a contract for “additional benefits” was imposed upon all employers and their employees as a matter of law. Section 31-284 (a) would not, however, appear to preclude an employer and employee from entering into an express contract whereby the employer agrees to provide uninsured motorist coverage for the benefit of the employee in addition to workers’ compensation coverage.

       There are no references to the Workers’ Compensation Act in the legislative history of General Statutes (Rev. to 1985) § 38-175c (now § 38a-336). See 12 S. Proc., Pt. 4,1967 Sess., pp. 1956-58; 12 H.R. Proc., Pt. 8,1967 Sess., pp. 3295-97.

       The plaintiff asserts that it would be absurd to require the city to provide uninsured motorist coverage, and yet to exclude its employees from benefitting from this coverage. While an employee cannot recover uninsured motorist benefits from his employer for work-related injuries, others might be eligible for such benefits, i.e., a passenger in the automobile who is not an employee. Consequently, requiring an employer to maintain uninsured motorist coverage on its automobiles is not absurd. WThether an employer’s uninsured motorist policy may make an outright exclusion in coverage for an employee occupying an automobile during the course of employment is an issue to be addressed by the legislature and the insurance commissioner, not the courts. See Wilson v. Security Ins. Co., 213 Conn. 532, 539, 569 A.2d 40, cert. denied, 498 U.S. 814, 111 S. Ct. 52, 112 L. Ed. 2d 28 (1990); see also Regs., Conn. State Agencies § 38-175a-6 (c) (listing exclusions from an insurer’s obligation to pay uninsured motorist benefits).

       We have recognized two narrow exceptions to the exclusivity of the Workers’ Compensation Act. See Blancato v. Feldspar Corporation, 203 Conn. 34, 40, 522 A.2d 1235 (1987) (exception for minor who has been illegally employed); Jett v. Dunlap, 179 Conn. 215, 218-19, 425 A.2d 1263 (1979) (exception for intentional torts committed or intentionally directed by employer); but see Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985) (declining to extend Jett exception to include “accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury” [internal quotation marks omitted]).

       The plaintiff also argues that § 38-175a-6 (d) of the Regulations of Connecticut State Agencies authorizes a claimant to recover both uninsured motorist benefits and workers’ compensation benefits. Section 38-175a-6 (d) (2) provides in relevant part that a policy for uninsured motorist coverage “may provide for the reduction of limits to the extent that damages have been . . . paid or are payable under any workers’ compensation . . . law.” The plaintiff emphasizes that we accepted the validity of the regulation in Wilson v. Security Ins. Co., 213 Conn. 532, 569 A.2d 40 (1990), and that the regulation “necessitates a finding that a claim for workers’ compensation benefits and a claim for [uninsured motorist] benefits can co-exist and that the former does not bar the latter.” To the contrary, this regulation does not lead to such a conclusion. Section 38-175a-6 (d) does no more than authorize a setoff whereby an insurer may deduct from the limits of its uninsured motorist policy any amounts that have been paid pursuant to a workers’ compensation policy. For example, an employee who has received workers’ compensation benefits would not be precluded by General Statutes (Rev. to 1985) § 31-284 (a) from making a claim for uninsured motorist benefits under his own personal automobile insurance policy. Pursuant to the regulation, the employee’s personal automobile insurance carrier would be entitled to deduct from any insurance payment the amount of workers’ compensation benefits received by the plaintiff.

       Because we concluded in CNA Ins. Co. v. Colman, 222 Conn. 769, 610 A.2d 1257 (1992), that an employee of a non-self-insured employer was precluded by then General Statutes § 31-284 (a) from collecting uninsured motorist benefits from his employer’s insurance carrier, we need not address the plaintiff’s claim that denying him uninsured motorist benefits in this case would deny him equal protection of the law.

       See footnote 1 of the majority opinion.

       Here, as in the majority opinion, the term uninsured motorist benefits encompasses underinsured motorist benefits as well.

       “We further conclude that a self-insured entity, in its capacity as an employer, is required to provide workers’ compensation benefits, and, as an insurer, is required to provide uninsured motorist benefits. An employee’s receipt of workers’ compensation benefits from a self-insured employer does not, therefore, preclude his right to receive uninsured motorist benefits.
      “A review of the purposes and policies underlying workers’ compensation benefits and uninsured motorist benefits indicates that they exist for separate and distinct reasons.” Bouley v. Norwich, 25 Conn. App. 492, 495, 595 A.2d 884 (1991).