author: BORDEN, J.

text:
    CHERYL SCHULT v. JEFFREY SCOT SCHULT
    (SC 15418)
    Borden, Berdon, Katz, Palmer and McDonald, Js.

      Argued January 15
    officially released July 22, 1997

      Elizabeth Gleason, with whom, on the brief, were Mary Ann Barile and Lucy W. Rankin, for the appellant (guardian ad litem of minor child).

      Yvonne M. Shoff, certified legal intern, with whom was Carolyn Wilkes Kaas, for the appellee (plaintiff).

      Linda P. Dunphy, with whom, on the brief, was John C. Kucej, for the appellee (defendant).

      John J. Bennell, for the appellee (intervenor Joan Radin).

      Colette S. Griffin, with whom, on the brief, was Robert P. Murphy, legal intern, for the appellee (minor child).

      Louis I. Parley, Gary Cohen, Gaetano Ferro and Arnold Rutkin filed a brief for the American Academy of Matrimonial Lawyers, Connecticut Chapter, as amicus curiae.
   Opinion

BORDEN, J.

The sole issue in this certified appeal is whether an attorney representing a minor child in connection with a custody dispute may advocate a position that is contrary to that of the child’s guardian ad litem. The plaintiff, Cheiyl Schult, brought this dissolution of marriage action against the defendant, Jeffrey Scot Schult, seeking, inter alia, custody of their only child. The child’s maternal grandmother, Joan Radin, intervened in the dissolution action pursuant to General Statutes § 46b-57. The trial court appointed both an attorney and a guardian ad litem for the child. The guardian ad litem appeals from the judgment of the Appellate Court, which affirmed the judgment of the trial court granting sole custody to the intervenor and visitation rights to the plaintiff and the defendant. See Schult v. Schult, 40 Conn. App. 675, 681-82, 672 A.2d 959 (1996). We conclude that the trial court did not abuse its discretion in determining that it was in the best interests of the child to permit the child’s attorney to advocate a position regarding custody that was contrary to the position of the guardian ad litem. Accordingly, we affirm the judgment of the Appellate Court.

The following factual and procedural history is undisputed. The plaintiff and the defendant were married on February 14, 1986. Their only child was bom approximately two and one-half years later, and has a history of emotional, psychological and developmental problems. On March 7, 1991, the plaintiff brought the present dissolution action against the defendant seeking, inter alia, custody of their child. The defendant filed a cross complaint in which he, too, sought custody of the child.

On April 18, 1991, the defendant moved out of the family home. On that same date, Steve Norman moved into the family home as a boarder. The plaintiff and Norman have resided together since that time and now have plans to marry. On August 16, 1991, upon motion by the defendant, the trial court, Jones, J., appointed Colette Griffin as the child’s attorney.

The following additional facts are set forth in the Appellate Court opinion. “On the evening of November 19, 1991, Norman was baby-sitting while the plaintiff, a licensed nurse practitioner, was at work. The child was three years old at the time. Norman testified that about five minutes after the child had gone to bed, he came out of the bedroom and was crying. Norman observed that the child had a mark above his eye and treated the injury with an ice pack. After fifteen to twenty minutes, the child stopped crying and went back to bed. The following morning, Norman noticed that the child was limping and would not put any pressure on his leg. When the plaintiff returned home at 7:30 a.m., Norman told her that ‘we’ve got a problem.’

“The plaintiff called Karen Laugel, their pediatrician, who was in her office in Bridgeport. The plaintiff and Norman took the child in the plaintiffs car to Laugel’s office. After examining the child, Laugel stated that ‘it looks like a broken leg.’ Feeling that the child’s injury was ‘very worrisome for the possibility of abuse’ and that the child’s injury could not ‘be explained by falling out of the bed,’ Laugel instructed the plaintiff and Norman to bring the child to Bridgeport Hospital where the child could be treated for his injury and where an investigation would be initiated for child abuse. Laugel also told the plaintiff and Norman that she would meet them at the hospital shortly.

“The plaintiff and Norman then took the child to the University of Connecticut Health Center, John Dempsey Hospital (Dempsey Hospital), where the child was admitted on November 20, 1991. After approximately two hours at the hospital, Norman told the plaintiff that he had to go home and feed the animals and left the hospital. After remaining at home for approximately two hours, Norman then drove the plaintiffs car to Stratford, where he checked into a Days Inn at about 8:30 p.m. The following day, November 21, Norman drove around New York City and returned to the Days Inn in Stratford for the evening. On November 22, Norman drove to the Boston area and checked into a motel in Devon, Massachusetts. On November 23, three days after he had left the hospital, Norman returned to Dempsey Hospital. The doctors at Dempsey Hospital did not conclude that the child had been abused and released the child to the plaintiff on November 25. The child’s discharge diagnosis stated that he had suffered a fractured leg.

“At the request of Laugel, the department of children and family services [department] conducted an investigation for abuse. After meeting with the child, the plaintiff, Norman, and several doctors at Dempsey Hospital, [the department] concluded that the origin of the child’s injury was unknown and that abuse could not be confirmed.” Schult v. Schult, supra, 40 Conn. App. 677-679.

On January 3, 1992, Radin intervened in the dissolution action, and the trial court, Sequino, J., ordered that temporary joint custody be awarded to the plaintiff and the intervenor, with physical residence with the intervenor. The child has resided with the intervenor since January 3, 1992. Id., 677 n.2. On December 4, 1992, upon motion by the plaintiff, the trial court, Jones, J., appointed Elizabeth Gleason as the child’s guardian ad litem.

The trial began on November 1, 1993, before Hon. Thomas J. OSullivan, judge trial referee. At the trial, the guardian ad litem was called as a witness during the plaintiffs case-in-chief and testified that custody should be awarded to the plaintiff. The guardian ad litem was the only witness, other than the plaintiff and Norman, to testify that the child’s safety would not be endangered by awarding custody to the plaintiff. Allen Rubin, the family relations officer who conducted a review of the case, testified that it was in the child’s best interest that custody be awarded to the intervenor. Sidney Horowitz, the child’s and plaintiffs treating psychologist who conducted a court-ordered evaluation of the child, expressed serious concerns for the child’s safety in Norman’s presence and recommended that custody be awarded to the intervenor. Laugel testified that the child was not safe in the plaintiffs custody. Margaret Kunsch, the child’s clinical social worker at the Parent Child Resource Center, testified that it would be detrimental to the child to remove him from the intervenor’s custody. Kunsch also testified that the child considered “home” to be with the intervenor and had made “remarkable progress” within the past three months.

The child’s attorney did not testify; rather, she participated in the trial by calling witnesses and conducting direct and cross-examination. The guardian ad litem and the plaintiff objected during the trial to the line of questioning by the child’s attorney and requested that the trial court order her to ask the witnesses questions prepared by the guardian. The trial court, however, overruled their objections.

At the conclusion of the evidence, the trial court heard final arguments from all of the attorneys in the case, including the child’s attorney, who argued that custody should be awarded to the intervenor. Both the plaintiff and the guardian ad litem objected to the closing argument by the child’s attorney. The trial court overruled their objections.

The trial court rendered judgment granting sole custody, to the inteivenor pursuant to General Statutes § 46b-56b, with visitation rights to the plaintiff and the defendant. In its memorandum of decision, the trial court found “ ‘as a fact that [the child’s] leg was broken by [Norman], that [Norman] told [the plaintiff] when she came home what he had done and they both decided to tell the story that [the child’s] leg was broken while [he] was alone in the bedroom in bed. When they told [Laugel] they did not know what happened to [the child], [Laugel] told them that she felt there was some abuse involved and that an investigation would be made for child abuse. They did not follow the doctor’s order to go to Bridgeport Hospital but went eventually to [Dempsey Hospital] in Farmington. [Norman] left that hospital as soon as he could and testified that he wanted to get away, that he did not know what was going to happen to him. Under these circumstances, it is clear that it would not be in the best interest of [the child] for him to be given into [the plaintiffs] custody with [Norman] there, knowing that he got away with breaking [the child’s] leg as the court has found and with the opportunity to abuse [the child] further. The court cannot conceive of a situation more detrimental to [the child] than to permit [the plaintiff] to have custody of [the child] now. Under the above circumstances, [the plaintiff] sided with [Norman] against [the child]. She should not be given the opportunity to do that again.’ ” Schult v. Schult, supra, 40 Conn. App. 680-81.

In her appeal from the judgment of the trial court to the Appellate Court, the plaintiff claimed, inter alia, that the trial court abused its discretion by allowing the child’s attorney to argue against the recommendation of the child’s guardian ad litem. Id., 686. The guardian ad litem filed a brief in support of the plaintiffs position, and argued that the trial court’s decision to permit the child’s attorney to make a recommendation contrary to that of the guardian ad litem prevented a fair trial on the question of custody. Id., 687. The Appellate Court concluded that the trial court did not abuse its discretion in allowing the attorney for the child to offer her recommendation concerning the custody of the child because there was no indication in the record that the attorney’s recommendation was without a basis in fact or that the court relied solely on it. Id., 691-92.

The guardian ad litem filed a petition for certification to appeal from the judgment of the Appellate Court to this court. We granted certification limited to the following issue: “In an action for dissolution of a marriage, if a child is represented by both a guardian ad litem and an attorney, does the attorney for the child have the authority to express an opinion on behalf of the child that differs from the opinion of the guardian ad litem?” Schult v. Schult, 237 Conn. 912, 912-13, 675 A.2d 885 (1996). After reviewing the record and the parties’ briefs, however, we rephrase the issue as follows: “In an action for dissolution of a marriage, if a child is represented by both a guardian ad litem and an attorney, may the trial court allow the child’s attorney to advocate a position that is different than that recommended by the guardian ad litem?” We answer the reformulated certified question in the affirmative. Accordingly, we affirm the judgment of the Appellate Court, although we do so on a different rationale.

The certified question presents an issue of first impression for this court. The guardian ad litem, plaintiff and amicus curiae urge us to adopt a bright line rule that prohibits a child’s attorney from advocating a position that is contrary to that of the guardian ad litem. They argue that when a child is represented by both an attorney and a guardian ad litem in a custody dispute, the guardian ad litem becomes the attorney’s “client,” and that, as the client, the guardian ad litem makes the decisions on behalf of the child, and the attorney must advocate those decisions. See American Academy of Matrimonial Lawyers, “Representing Children: Standards for Attorneys and Guardians Ad Litem in Custody or Visitation Proceedings,” 13 J. Am. Acad. Matrim. L. 1, 27-28 (1995) (where child represented by attorney and guardian ad litem, attorney must represent guardian as litem as if guardian ad litem were client).

Although we recognize the appeal that a bright line rule would have for practitioners, clients and judges alike, we cannot blind ourselves to the fact that custody disputes involving minor children often do not lend themselves to easy, bright line solutions. We reject a rule that would unduly restrict the trial court’s ability to receive information that might aid it in determining where the best interests of a child lie. Therefore, we decline to adopt the bright line rule requested by the guardian ad litem, plaintiff and amicus, and, instead, hold that it is within the trial court’s discretion to determine, on a case-by-case basis, whether such dual, conflicting advocacy of position is in the best interests of the child.

The guiding principle in determining custody is the best interests of the child. “In making or modifying any order with respect to custody or visitation, the court shall ... be guided by the best interests of the child . . . General Statutes § 46b-56 (b) (1); see also Knock v. Knock, 224 Conn. 776, 789, 621 A.2d 267 (1993); Yontef v. Yontef, 185 Conn. 275, 282, 440 A.2d 899 (1981). The best interests of the child include the child’s interests in sustained growth, development, well-being, and continuity and stability of its environment. Cappetta v. Cappetla, 196 Conn. 10, 16, 490 A.2d 996 (1985). The trial court is vested with broad discretion in determining what is in the child’s best interests. Presutti v. Presutti, 181 Conn. 622, 627, 436 A.2d 299 (1980); Ridgeway v. Ridgeway, 180 Conn. 533, 541, 429 A.2d 801 (1980).

This principle also governs the appointment of counsel for a minor child in a marriage dissolution action. “The court may appoint counsel for any minor child ... if the court deems it to be in the best interests of the child . . . .” General Statutes § 46b-54 (a). The appointment of counsel lies firmly within the trial court’s discretion in the best interests of the child. Salvio v. Salvio, 186 Conn. 311, 325 n.12, 441 A.2d 190 (1982); Yontef v. Yontef, supra, 185 Conn. 284; Ridgeway v. Ridgeway, supra, 180 Conn. 540. Counsel may also be appointed “when the court finds that the custody, care, education, visitation or support of a minor child is in actual controversy . . . .” General Statutes § 46b-54 (b). The statute further provides that “[c]ounsel for the child or children shall be heard on all matters pertaining to the interests of any child, including the custody, care, support, education and visitation of the child, so long as the court deems such representation to be in the best interests of the child.” General Statutes § 46b-54 (c). The purpose of appointing counsel for a minor child in a dissolution action is to ensure independent representation of the child’s interests, and such representation must be entrusted to the professional judgment of appointed counsel within the usual constraints applicable to such representation. Knock v. Knock, supra, 224 Conn. 791. The opinion of counsel is not binding on the trial court. Blake v. Blake, 207 Conn. 217, 224, 541 A.2d 1201 (1988).

The appointment of a guardian ad litem is neither required nor specifically authorized in chapter 815j of the General Statutes, which governs the resolution of custody disputes. See generally General Statutes § § 46b-40 through 46b-87a. The appointment of a guardian ad litem is authorized, however, pursuant to General Statutes § 45a-132 (a), which provides that the court may appoint a guardian ad litem for a minor or incompetent “[i]n any proceeding before a court of probate or the Superior Court including the Family Support Magistrate Division. . . .’’The appointment of a guardian ad litem lies within the discretion of the trial court. General Statutes § 45a-132 (b). Likewise, the guardian ad litem may be removed by the trial court whenever it appears to the court to be in the best interests of the child to do so. General Statutes § 45a-132 (f).

Although this court has not previously delineated the exact roles of the attorney for the child and the guardian ad litem, we have recognized the potential for conflict between these roles when both are appointed by the court. See Newman v. Newman, 235 Conn. 82, 101, 663 A.2d 980 (1995) (“there may be instances in which the functions of counsel for minor children differ fundamentally from those of a guardian ad litem”); Knock v. Knock, supra, 224 Conn. 791 (“[t]he legislature has not delineated, nor has this court yet been presented with the opportunity to delineate, the obligations and limitations of the role of counsel for a minor child”).

In Newman, for example, the issue was whether, in the absence of a guardian ad litem, an attorney for the minor children could prosecute an appeal from a judgment modifying a father’s support obligations. In determining this issue, we expressed concern “about creating conflict in the attorney’s role by conflating the role of counsel for a child with the role of a guardian ad litem or next friend. Typically, the child’s attorney is an advocate for the child, while the guardian ad litem is the representative of the child’s best interests. As an advocate, the attorney should honor the strongly articulated preference regarding taking an appeal of a child who is old enough to express a reasonable preference; as a guardian, the attorney might decide that, despite such a child’s present wishes, the contrary course of action would be in the child’s long term best interests, psychologically or financially. We recognized a similar concern in State v. Garcia, 233 Conn. 44, 90 n.36, 658 A.2d 947 (1995), in which we concluded that, because his legal interests and medical interests may diverge, an incompetent criminal defendant should have both legal counsel to represent his legal, or expressed, interests, and a guardian appointed to represent his medical, or best, interests. See also A. Lurie, ‘Representing the Child-Client: Kids are People Too,’ 11 N.Y.L. Sch. J. Hum. Rts. 205 (1993).” Newman v. Newman, supra, 235 Conn. 96-97.

To resolve the issue presented in Newman, we turned to § 46b-54 for guidance. “[T]he fact that, in the trial court, the law deems it sufficient to protect [children’s interests in dissolution proceedings] by way of an appointment of an attorney, rather than also requiring a simultaneous appointment of a guardian ad litem or the naming of a next friend, is an implicit recognition that, under most circumstances, that attorney is an appropriate adult to provide such protection.” Id., 97. We adopted the best interests of the child standard enunciated in § 46b-54 and concluded that, although generally minor children may not appeal from a trial court order in the absence of a guardian ad litem, counsel appointed pursuant to § 46b-54 may file an appeal on behalf of the minor children provided that the trial court determines that such an appeal is in the children’s best interests. Id., 104.

Applying this analysis to the present case, we conclude that, where the court has appointed both an attorney and a guardian ad litem to represent a child in a dissolution action, the attorney for the child may advocate a position different from that of the guardian ad litem so long as the trial court determines that it is in the best interests of the child to permit such dual, conflicting advocacy. Leaving the determination to the sound discretion of the trial court is particularly important in those difficult cases, such as the present one, in which the child is unable to state a preference directly, there is an allegation of child abuse, and the parties present drastically differing views of the events. In such situations, it may be particularly difficult for the trial court to determine where the best interests of the child lie. To aid the court in its duty to determine the best interests of the child for purposes of custody, it may be helpful to the trial court to hear the contradictory positions of the attorney and the guardian ad litem. The trial court is in the best position to evaluate the child’s needs for representation as the case and the evidence unfold.

In the present case, it is important to note the context in which the attorney and the guardian ad litem were appointed. The minor child suffers from emotional, psychological and developmental problems. Custody of the child was initially contested by the plaintiff and the defendant. At the request of the defendant, the court appointed the attorney for the child pursuant to § 46b-54. Following the intervention by Radin, custody became bitterly contested between the plaintiff and the intervenor, with the defendant siding with the intervenor. The custody battle centered largely around whether the child would be safe in the plaintiffs custody in light of allegations of abuse against the plaintiff’s live-in boyfriend. At the request of the plaintiff, the court then appointed the guardian ad litem for the child.

During the course of the trial, the trial referee frequently stated that the case was a very difficult one and that he intended to “hear everyone” on the issues. The guardian ad litem was heard on the issues relating to the child’s custody. She was called as a witness in the plaintiffs case-in-chief and testified that she saw no danger in the child being in the plaintiffs custody. Furthermore, she was not the only actor to present that position, which was the same as that advocated by the plaintiff. In addition, there was adequate evidence in the record to support the position of the child’s attorney that custody should be awarded to the intervenor. Several experts testified that they had serious reservations about returning the child to the plaintiffs care in light of unanswered questions surrounding the incident of alleged abuse. In fact, the trial court specifically found that Norman had broken the child’s leg and that the plaintiff had cooperated in the cover-up of that serious abuse. Finally, the position advocated by the child’s attorney was the same as that taken by the attorneys for the intervenor and the defendant. In such circumstances, we cannot conclude that the trial court abused its discretion in hearing from the child’s attorney and the guardian ad litem, despite their contrary positions, in making its decision regarding the best interests of the child concerning custody.

The guardian ad litem, plaintiff and amicus nonetheless argue that the Connecticut Rules of Professional Conduct require counsel to advocate for the position of the guardian ad litem. In support of this argument, they point to rules 1.2 and 1.14 of the Connecticut Rules of Professional Conduct. Rule 1.2 requires an attorney to abide by a client’s decision with respect to the objectives of the representation. Rule 1.14 requires the attorney representing a client under a disability, which includes minority, to maintain a lawyer-client relationship that is as normal as possible. When the client cannot act in his or her own interest, rule 1.14 permits, but does not require, the attorney to seek the appointment of a guardian. The official comment to rule 1.14 provides that, where the client has a legal representative, such as a guardian ad litem, “the lawyer should ordinarily look to the representative for decisions on behalf of the client.” Rules of Professional Conduct 1.14, comment (1995). The guardian ad litem argues that, because she was appointed as the legal representative of the child, the child’s attorney was ethically bound to follow her recommended position.

Our review of the rules, however, does not lead us ineluctably to the result advocated by the guardian ad litem. At the most, the rules merely recognize that there will be situations in which the positions of the child’s attorney and the guardian may differ. See, e.g., Connecticut Bar Association Committee on Professional Ethics, Informal Opinion No. 94-29 (1994) (recommending that attorney seek appointment of guardian where child expresses interests that attorney believes is contrary to child’s best interests). At the least, the rules neither contemplate nor answer the problem posed in the present case. Although we agree that ordinarily the attorney should look to the guardian, we do not agree that the rules require such action in every case. This case is one of those unusual situations. There was no evidence that the child’s attorney had been unable to determine the child’s interests from her review of the expert reports, medical records and school records. Furthermore, the guardian ad litem was appointed by the court at the request of the plaintiff, not at the request of the child’s attorney. In light of the trial court’s finding that the plaintiffs boyfriend had abused the child, and that the plaintiff had sided with the boyfriend against the safety of the child, we cannot conclude that the attorney for the child should have been prevented from advocating that custody not be awarded to the plaintiff.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes § 46b-57 provides: “Third party intervention re custody of minor children. Preference of child. In any controversy before the Superior Court as to the custody of minor children, and on any complaint under this chapter or section 46b-1 or 51-348a, if there is any minor child of either or both parlies, the court if it has jurisdiction under the provisions of chapter 815o, may allow any interested third parly or parties to intervene upon motion. The court may award full or partial custody, care, education and visitation rights of such child to any such third party upon such conditions and limitations as it deems equitable. Before allowing any intervention, the court may appoint counsel for the child or children pursuant to the provisions of section 46b-54. In making any order under this section the court shall be guided by the best interests of the child, giving consideration to the wishes of the child if he is of sufficient age and capable of forming an intelligent preference.”

      ‘‘The relevant part of the child’s discharge diagnosis from Dempsey Hospital, dated November 25, 1991, provides as follows: ‘Physical Examination: The physical exam on admission was significant for dry, cracked lips, bruises under the left eye and on the left hand dorsum about 5 x 5 cm in size, swollen right fourth digit with decreased flexion, left knee warm with decreased range of motion, left medial thigh with abrasion 5 cm above the knee, and bruising of the lateral aspect of the left thigh.
      “A bone scan showed recent fracture of the left proximal tibia in the area of the growth plate. This fracture is also noted on x-ray. The bone scan also showed increased uptake in the distal ulna and in the fourth digit of the right hand. The left leg was splinted by Orthopaedics, and the patient was kept on bedrest.’ ” Schult v. Schult, supra, 40 Conn. App. 679 n.5.

       General Statutes § 46b-56b provides: “Presumption re best interest of child to be in custody of parent. In any dispute as to the custody of a minor child involving a parent and a nonparent, there shall be a presumption that it is in the best interest of the child to be in the custody of the parent, which presumption may be rebutted by showing that it would be detrimental to the child to permit the parent to have custody.”

       “Although both the [plaintiff] and the [defendant] initially sought custody, the [defendant] eventually agreed that it was in the best interest of the child to award custody to the intervenor.” Schult v. Schult, supra, 40 Conn. App. 677 n.4. Although the defendant was not a party to the appeal before the Appellate Court; id.; we permitted him to file a brief in this certified appeal.

       “Upon rendering judgment awarding sole physical and legal custody of the child to the intervenor, the trial court also ordered that the plaintiff shall have rights of ‘reasonable visitation’ with the child and specifically ordered that the plaintiff ‘shall have visitation on Saturdays from 2:30 p.m. to 12:00 p.m. on Sundays, and one weekday afternoon per week.’ On April 6, 1994, the plaintiff filed a motion for contempt and order, claiming that the intervenor had wilfully failed to comply with the court’s order of visitation. The intervenor then filed a motion for modification on May 26, 1994, requesting the court to terminate the plaintiffs right to overnight visitation. The intervenor’s motion for modification also sought a court order preventing the plaintiff from conducting visitation at the plaintiffs residence and from conducting visitation when Norman is present. After conducting hearings, the trial court issued a second memorandum of decision on August 1, 1994, in which it denied the intervenor’s motion for modification. The trial court did not grant the plaintiffs motion for contempt, and issued an order permitting the plaintiff to have the child for overnight visitation each weekend and for visitation one afternoon each week.” Schult v. Schult, supra, 40 Conn. App. 681.

       The plaintiff also claimed that the trial court: (1) misconstrued § 46b-56b in concluding that the intervenor should have been awarded custody of the child; (2) failed to issue orders to assist the family in eventual reunification; and (3) improperly granted temporary custody of the minor child to the intervenor. The Appellate Court affirmed the trial court on all three of these issues. Schult v. Schult, supra, 40 Conn. App. 681-82. These issues are not before this court.

       Although we denied the plaintiffs petition for certification; Schult v. Schult, 237 Conn. 913, 675 A.2d 885 (1996); we permitted the plaintiff to file a brief in the guardian ad litem’s certified appeal. We also approved the application of the Connecticut Chapter of the American Academy of Matrimonial Lawyers to file a brief as amicus curiae.

       In her petition for certification, the guardian ad litem presented the issue as involving whether the child’s attorney has “the authority to express an opinion on behalf of the child.” The use of this language, however, suggests that the child’s attorney expressed an opinion by testifying as a witness or an expert. The child’s attorney did not testify at trial, but, rather, she called witnesses, conducted direct and cross-examination and made a final argument. Following our review of the record and the parties’ arguments on appeal, we conclude that the certified issue is more appropriately rephrased as involving whether the child’s attorney may “advocate a position that is different than that recommended by the guardian ad litem.” See Stamford Hospital v. Vega, 236 Conn. 646, 648 n.1, 674 A.2d 821 (1996) (this court may rephrase certified questions in order to render them more accurate in framing issues that case presents); Newman v. Newman, 235 Conn. 82, 87, 663 A.2d 980 (1995) (same).

       Rule 1.2 of the Rules of Professional Conduct provides in relevant part: “Scope of Representation
      “(a) A lawyer shall abide by a client’s decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. . . .
      “(c) A lawyer may limit the objectives of the representation if the client consents after consultation. . . .
      “(e) When a lawyer knows that a client expects assistance not permitted by the rules of professional conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer’s conduct.”
      Rule 1.14 of the Rules of Professional Conduct provides: “Client under a Disability
      “(a) When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whetherbecause of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
      “(b) A lawyer may seek the appointment of a guardian or take other protective action with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client’s own interest.”


source: Caselaw Access Project

author: MCDONALD, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. CHARLES COLEMAN
    (SC 15515)
    Callahan, C. J., and Borden, Katz, McDonald and Peters, Js.
    Argued April 29
    officially released July 22, 1997

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were Michael Dearinglon, state’s attorney, and John Waddock, assistant state’s attorney, for the appellant (state).

      Richard Emanuel, assistant public defender, for the appellee (defendant).
   Opinion

MCDONALD, J.

The sole issue raised in this certified appeal is whether, under the circumstances of this case, the trial court improperly admitted into evidence testimony concerning four knives, as well as the knives themselves as the Appellate Court concluded. The defendant, Charles Coleman, was convicted after a jury trial of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), burglary in the second degree in violation of General Statutes § 53a-102 (a), sexual assault in the first degree in violation of General Statutes (Rev. to 1985) § 53a-70 (a), and unlawful restraint in the first degree in violation of General Statutes (Rev. to 1985) § 53a-95 (a). We granted the state’s petition for certification to appeal to this court from the judgment of the Appellate Court, which had reversed the judgment of conviction. See State v. Coleman, 42 Conn. App. 78, 679 A.2d 950 (1996).

On appeal to this court, the state claims that the Appellate Court improperly concluded that the trial court should not have admitted evidence regarding the knives found in the defendant’s vehicle and on his person at the time of his arrest. We agree with the state and reverse the judgment of the Appellate Court.

There was evidence before the jury that the victim lived with her mother on the first floor of a two-family house in New Haven. “In the early morning hours of July 7, 1986, the victim was awakened by an assailant, who put his hand over her mouth. The assailant told the victim that if she did not do what he said, her mother would be harmed.” Id., 80-81. The assailant then had sexual intercourse with the victim against her will.

After her assailant had left, the victim “checked the doors and windows of the house. She noticed that the doors to the house were still locked, as they had been before she went to bed. The victim also noticed that the window in the living room was wide open, even though the screen had been down and in the locked position when she went to bed.” Id., 81.

When the police arrived, “they processed the scene for fingerprints, and found seven latent fingerprints on the windowsills of the window of entry and the victim’s bedroom window.” Id., 81. Two of the fingerprints found on the exterior of the bedroom window were identified as being those of the middle and ring fingers of the defendant’s right hand. Additionally, the police found that the window screens in the living room had been sliced on both sides with a sharp cutting instrument, and the assailant had reached through the slices in the screen in order to unlatch the locks and gain entry to the apartment.

The defendant was arrested the following day, July 8, 1986, in connection with this incident. At the time of the defendant’s arrest, he was sitting in his car and was carrying a knife. That knife was seized by the police, who, acting pursuant to a search warrant, subsequently seized three more knives from the defendant’s automobile. At trial, the state sought to introduce evidence of the four knives claiming that they demonstrated that the defendant had the means with which to have cut the victim’s window screens, and could thereby have reached in with his fingers to unlatch the locks and enter the victim’s apartment. The defendant objected to the admission of any evidence regarding the knives, claiming that the evidence was irrelevant and more prejudicial than probative. The trial court overruled the objection, ruling that the evidence was relevant to establish the means of entry and that the objections were more suited to the weight of the evidence than to its admissibility.

The evidence admitted with respect to the four knives was the testimony of the officer who had executed the search warrant, Detective James Stephenson, and a stipulation regarding the testimony of the arresting officer, Detective Ray Della Camera. Additionally, the knives themselves were introduced as exhibits.

We begin our analysis with the well established laws of evidence. “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274, 305, 664 A.2d 743 (1995).

Further, “[t]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987). The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. State v. Avis, 209 Conn. 290, 298, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989).” (Internal quotation marks omitted.) State v. Bruno, 236 Conn. 514, 549, 673 A.2d 1117 (1996). “We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” State v. Kulmac, 230 Conn. 43, 61, 644 A.2d 887 (1994).

Applying these principles to the facts of this case, we conclude that the Appellate Court improperly determined that the trial court should not have admitted the evidence concerning the four knives. Our review of the record persuades us that the trial court did not abuse its discretion when it determined that evidence regarding the knives was relevant to this case. The trial testimony indicated that the defendant had entered the victim’s apartment by way of slits made in the window screen by a sharp cutting instrument. The state introduced evidence of the knives to show that the defendant, twenty-two hours after the offense, had a number of sharp cutting instruments at his immediate disposal. “It is the generally accepted rule that in a case in which the defendant is charged with the offense of burglary, after proof of the burglary has been introduced the prosecution may show that the defendant had burglar tools or implements in his possession soon after the time of the commission of the offense and may introduce such tools or implements in evidence.” Sanders v. United States, 238 F.2d 145, 147 (10th Cir. 1956); see also State v. Thomas, 205 Conn. 279, 283, 533 A.2d 553 (1987) (where victim bound by rope, testimony regarding clothesline in defendant’s basement admissible to show defendant had access to rope); State v. Miller, supra, 202 Conn. 482 (where victim bound by handcuffs, evidence that handcuffs were used at defendant’s workplace admissible to show defendant’s access to handcuffs); State v. Smith, 198 Conn. 147, 157, 502 A.2d 874 (1985) (where defendant threatened victim with gun, evidence that gun with similar appearance was in defendant’s possession shortly after crime admissible to show defendant’s access to gun); State v. Paoletto, 181 Conn. 172, 185-86, 434 A.2d 954 (1980) (in burglary case where entry was gained by forcibly tearing down door of building, evidence of pry bar and screwdriver found in defendant’s possession admissible to show defendant’s access to type of burglary tools used). Accordingly, the Appellate Court improperly concluded that the evidence with respect to the knives was irrelevant.

Further, the trial court did not abuse its discretion when it determined that the evidence of the knives was more probative than prejudicial. We have recognized that even where evidence is relevant there are “four situations where prejudice to the defendant could outweigh the probative value of evidence. ‘These are: (1) where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it.’ ” State v. Greene, 209 Conn. 458, 478-79, 551 A.2d 1231 (1988); see also State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982). None of these situations exists in this case. The state conceded in argument to the jury that the knives were relevant only to prove that the defendant had at his disposal the means to enter the victim’s apartment. The state also conceded that it could not prove that any one of the knives was actually so used. The offer did not create a side issue or consume an undue amount of time. Furthermore, there was no surprise, because the defendant had knowledge from the time of their seizure that the state possessed the knives as evidence.

The defendant objected to the introduction of any evidence of the four knives, but failed to object specifically to the admission of any one of the four knives in particular as evidence and never made any distinct claim to any single knife. “This court, will not consider claimed errors on the part of the trial court unless it appears that the question was distinctly raised at the trial and was ruled upon and decided by the court . . . .” State v. Simms, 170 Conn. 206, 208, 365 A.2d 821, cert. denied, 425 U.S. 954, 96 S. Ct. 1732, 48 L. Ed. 2d 199 (1976); see also Practice Book § 4061 (appellate court “not. . . bound to consider a claim unless it was distinctly raised at the trial”). We are constrained to review the actions of the trial judge in ruling on the objection as made at trial. “Our review of evidentiary rulings made by the trial court is limited to the specific legal ground raised in the objection. . . . State v. Weinberg, 215 Conn. 231, 246, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990). . . . This court reviews rulings solely on the ground on which the party’s objection is based. State v. Manning, 162 Conn. 112, 118, 291 A.2d 750 (1971). . . .” (Citations omitted; internal quotation marks omitted.) State v. Prioleau, supra, 235 Conn. 310. The nature of the defendant’s objection thus limits our review of the trial court’s decision to the prejudicial effect of admission of evidence concerning the four knives. Accordingly, we do not address whether the trial court should have admitted into evidence testimony regarding any one of the knives, rather than the four knives themselves.

Under these circumstances, we cannot conclude, as did the Appellate Court, that the trial court abused its discretion in concluding that the evidence concerning the knives was relevant and more probative than prejudicial.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to consider the defendant’s remaining claims on appeal.

In this opinion the other justices concurred.

       General Statutes § 53a-101 provides in relevant part: “(a) A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and ... (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone. . . .”
      General Statutes § 53a-102 provides in relevant part: “(a) A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein. . . .”
      General Statutes (Rev. to 1985) § 53a-70 provides in relevant part: “(a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person. . . .”
      General Statutes (Rev. to 1985) § 53a-95 provides in relevant part: “(a) A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose the latter to a substantial risk of physical injury. ...”

       We granted certification limited to the following issues: (1) “Did the Appellate Court properly conclude that the trial court improperly admitted certain knives into evidence?” and (2) “If the answer to question 1. is yes, was the error harmful?” State v. Coleman, 239 Conn. 913, 682 A.2d 1007 (1996).
      Our resolution of the first certified issue renders consideration of the second issue unnecessary.

       On appeal to the Appellate Court, the defendant raised five issues including “that (1) the evidence was insufficient to establish his guilt of the crimes charged, (2) the trial court improperly admitted into evidence certain items that were never connected to the commission of the crimes charged, (3) his rights were violated by the convictions of second degree robbery and unlawful restraint in the first degree, (4) the trial court improperly charged the jury regarding burglary in the first degree and the definition of reasonable doubt, and (5) his rights were violated by the destruction of physical evidence.” State v. Coleman, 42 Conn. App. 78, 80, 679 A.2d 950 (1996). The Appellate Court determined that the evidence was sufficient to establish guilt. Because, however, it determined that the evidence concerning the knives improperly had been admitted, it did not reach the remainder of the issues raised by the defendant.

       These were the only fingerprints from which a positive identification could be made.

       The stipulation provided in relevant part: “Number one, that the state’s next witness would be Detective Ray Della Camera of the New Haven Police Department.
      “Number two, that Detective Della Camera is presently out of state, unavailable, and it is agreed between counsel that, if available to testify, Detective Della Camera would indicate the following:
      “(a) that on July 8, 1986 at approximately 2 a.m., he took the defendant . . . into custody pursuant to an arrest warrant,
      “(b) that this arrest occurred . . . while [the defendant] was seated in his car, and . . .
      “(f) that ... at the time of his arrest the defendant was searched and found to be in possession of a Hooked-built knife with a curved blade and wooden handle. . . .”


author: NORCOTT, J.

text:
    GEORGE SANDOR v. NEW HAMPSHIRE INSURANCE COMPANY
    (SC 15588)
    Callahan, C. J., and Norcott, Katz, McDonald and Peters, Js.

      Argued March 19
    officially released July 22, 1997

      Donald P. Guerrini, for the appellant (defendant).

      Robert G. Golger, for the appellee (plaintiff).
   Opinion

NORCOTT, J.

This appeal requires us to determine whether, under General Statutes § 14-60(a), the insurer of an automobile dealer must provide primary uninsured motorist benefits when, in the course of a borrower’s authorized test drive of an insured vehicle, a passenger in the vehicle is injured as a result of the negligence of an uninsured third party tortfeasor. The defendant, New Hampshire Insurance Company, appeals from the judgment of the trial court upholding the ruling by an arbitration panel that the defendant, the insurer of Jim’s Auto Repair (Jim’s Auto), and not the borrower’s insurer, was required to provide primary uninsured motorist coverage to the plaintiff, George Sandor. We affirm the judgment of the trial court.

The following undisputed facts are relevant to this appeal. On December 31, 1992, Jim’s Auto loaned to Ralph Masselli a motor vehicle for the purpose of taking a test drive. The plaintiff, Masselli’s brother-in-law, accompanied Masselli on the test drive and was injured when the loaned motor vehicle that Masselli was driving collided with a motor vehicle owned and negligently operated by Dawn Cappellieri. Masselli was not at fault in the collision. At the time of the accident, neither the plaintiff nor Cappellieri was insured. Masselli was insured under an automobile policy issued by the Aetna Insurance Company (Aetna), that provided $25,000 in liability coverage and $25,000 in uninsured motorist coverage for each of the two vehicles that Masselli owned. Jim’s Auto was insured under a garage policy issued by the defendant that provided $100,000 in liability coverage and $100,000 in uninsured motorist coverage.

The plaintiff sought uninsured motorist benefits under the policy issued to Jim’s Auto by the defendant, but the defendant denied coverage. Thereafter, the plaintiff applied to the trial court for an order to proceed with arbitration. The trial court granted the application. On December 13, 1995, a panel of three arbitrators conducted a hearing to determine whether the defendant was required to provide primary uninsured motorist coverage to the plaintiff. At the hearing, both the plaintiff and the defendant stipulated that a question of law existed as to the applicability of § 14-60 (a) to the determination of whether the defendant’s uninsured motorist insurance was primary. The parties also agreed throughout the proceedings that the uninsured motorist coverage provided by the defendant to the dealer plainly applied, as a contractual matter, to the plaintiff. The only question before the arbitrators was whether the terms of § 14-60 (a) abrogated the defendant’s contractual obligation under the circumstances of this case.

The arbitration panel concluded that the defendant was required to provide primary uninsured motorist coverage to the plaintiff. The defendant subsequently filed an application with the trial court to vacate, correct or modify the arbitrators’ award on the ground that § 14-60 (a) requires the policy issued to Masselli, as the borrower of the loaned motor vehicle, to be the primary source of uninsured motorist benefits for the plaintiff. On the basis of its review of General Statutes §§ 38a-336 (d) and 14-60 (a), the trial court denied the defendant’s motion. The defendant 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).

On appeal, the defendant claims that the trial court improperly upheld the arbitration panel’s conclusion that the defendant should provide primary uninsured motorist coverage to the plaintiff. The defendant argues that, under § 14-60 (a), the automobile insurance policy issued to Masselli as the borrower of the loaned motor vehicle is the primary source of uninsured motorist coverage for the plaintiff. We are unpersuaded and, accordingly, we affirm the judgment of the trial court.

The defendant’s claim requires us to decide for the first time whether, in setting forth the priority of a borrower’s liability and property insurance, § 14-60 (a) also establishes the priority of a borrower’s uninsured motorist coverage. In resolving this issue, “we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, ‘we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.’ ” United Illuminating Co. v. New Haven, 240 Conn. 422, 431, 692 A.2d 742 (1997).

We note at the onset that the legislature has imposed broad liability for many years on lenders of automobiles for injuries arising out of the misuse of their automobiles. See, e.g., General Statutes § 14-154a; Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 472 A.2d 306 (1984). Because the plaintiff’s injury resulted from the misuse of a third party’s automobile, the legislative objective embodied in § 14-154a is not directly implicated in this case. Nonetheless, the legislature’s broad policy of holding lenders responsible for injuries associated with the use of their automobiles directs us to construe narrowly those statutes that limit lender liability.

With this principle in mind, we consider the language of the statute. Section 14-60 (a) permits an automobile dealer to lend a motor vehicle for the purpose of demonstration “provided such person shall furnish proof to the dealer or repairer that he has liability and property damage insurance which will cover any damage to any person or property caused by the operation of the loaned motor vehicle . . . .” (Emphasis added.) This clause has been part of § 14-60 (a) since 1959; see Public Acts 1959, No. 499, § 1; and it emphasizes the responsibility of the borrower’s insurer for any damage caused by the borrower in the operation of the loaned motor vehicle. In 1961, the legislature amended § 14-60 (a) to require that the automobile Lability and property insurance of the borrower of a motor vehicle loaned by the dealer is the primary source of coverage. See Public Acts 1961, No. 277, § 1; Whitfield v. Empire Mutual Ins. Co., 167 Conn. 499, 505, 356 A.2d 139 (1975). The legislature again amended § 14-60 (a) in 1973 “to clarify the consequences of a dealer’s violation of the statute . . . .” Cook v. Collins Chevrolet, Inc., 199 Conn. 245, 249, 506 A.2d 1035 (1986). The provision added in 1973 requires that, if the borrower does not have any automobile liability or property insurance, the borrower and the dealer are “jointly liable for any damage to any person or property caused by the operation of such loaned motor vehicle . . . .” (Emphasis added.) Public Acts 1973, No. 73-233. The statute reflects the legislative effort to protect the public from reckless driving of loaned motor vehicles. See 8 S. Proc., Pt. 6, 1959 Sess., pp. 2595-96. By giving an injured person the statutory right to recover from the borrower’s insurer when the borrower is at fault, § 14-60 (a) provides an incentive to those who test drive motor vehicles to drive with the same care that they would exercise if they were driving a motor vehicle they owned.

As the defendant concedes, although § 14-60 (a) establishes the priority of a borrower’s automobile liability and property insurance, the statute is silent about uninsured motorist insurance. The defendant nevertheless argues that, because the legislature has required uninsured motorist insurance to be included in all automobile insurance liability policies since 1967, the references in § 14-60 (a) to liability and property insurance must be read to include uninsured motorist coverage. We disagree.

The Connecticut uninsured motorist statute, § 38a-336, formerly General Statutes (Rev. to 1989) § 38-175c, requires that “[e]ach automobile liability insurance policy shall provide insurance, herein called uninsured and underinsured motorist coverage . . . 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. . . .” The accompanying regulation, § 38a-334-6 (a) of the Regulations of Connecticut State Agencies provides that the “insurer shall undertake to pay on behalf of the insured all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured caused by an accident involving the uninsured motor vehicle. This coverage shall insure the occupants of every motor vehicle to which the bodily injury liability coverage applies. . . .” The defendant contends that, in order to construe § 14-60 (a) coherently and consistently with § 38a-336, we must interpret the references to liability and property insurance in § 14-60 (a) to include uninsured motorist insurance and that, therefore, we must conclude that primary coverage in this case is that afforded by the Aetna policy issued to Masselli.

A careful analysis of the language and legislative history of §§ 14-60 (a) and 38a-336 persuades us, to the contraiy, that the legislature did not intend the references to liability and property insurance in § 14-60 (a) to include uninsured motorist coverage. First, we note as a general matter that uninsured motorist insurance operates upon a different set of principles from those upon which automobile liability and property insurance are premised, and that uninsured motorist insurance protects the named insured against risks that are fundamentally different from liability and property insurance. Automobile liability and property insurance covers damage to other persons or motor vehicles for which the named insured or named insured’s covered motor vehicle is, at least in some measure, responsible. See R. Keeton & A. Widiss, Insurance Law (1988) § 4.8 (a), pp. 376-77 and § 4.9 (a), pp. 385-86. In contrast, “the purpose of [unjinsured motorist coverage is to protect the named insured and other additional insureds from suffering an inadequately compensated injury caused by an accident with an inadequately insured automobile.” (Internal quotation marks omitted.) Florestal v. Government Employees Ins. Co., 236 Conn. 299, 305, 673 A.2d 474 (1996). The public policy established by the uninsured motorist statute is to ensure that an insured recovers damages he or she would have been able to recover if the uninsured motorist had maintained a policy of liability insurance. Smith v. Safeco Ins. Co. of America, 225 Conn. 566, 573, 624 A.2d 892 (1993); Harvey v. Travelers Indemnity Co., 188 Conn. 245, 249, 449 A.2d 157 (1982). Because uninsured motorist insurance operates upon principles that are different from those on which liability and property insurance are premised, we do not agree with the defendant’s contention that, as a matter of cogent statutory interpretation, all references in § 14-60 (a) to automobile liability and property insurance also must include uninsured motorist coverage.

Second, the text of the uninsured motorist statute provides compelling support for our conclusion that the legislature did not intend to include uninsured motorist coverage within the ambit of § 14-60 (a). Subsection (d) of § 38a-336, which became effective on January 1, 1994, provides in relevant part: “If a person insured for uninsured and underinsured motorist coverage is an occupant of a nonowned vehicle covered by a policy also providing uninsured and underinsured motorist coverage, the coverage of the occupied vehicle shall be primary and any coverage for which such person is a named insured shall be secondary. All other applicable policies shall be excess. . . .” This amendment establishes the priority of multiple uninsured motorist policies by providing that the policy of the host motor vehicle is primary, the policy under which the occupant is a named insured is secondary, and all other policies for which the occupant may be an insured, such as a resident relative, are excess. Although the plaintiff in this case was uninsured at the time of the accident and, therefore, the priorities established by § 38a-336 (d) do not control this case, § 38a-336 (d) informs our interpretation of § 14-60 (a). If we were to accept the defendant’s argument that § 14-60 (a) applies to priorities of uninsured motorist policies, we would create a direct conflict between § 14-60 (a) and § 38a-336 (d) in those cases in which an insured passenger in an insured vehicle loaned by an automobile dealership to an insured borrower is involved in an accident caused by an uninsured motorist. According to the defendant, § 14-60 (a) would require that the borrower’s uninsured policy provide primary coverage for the plaintiffs injuries. In the same situation, however, § 38a-336 (d) would require that the dealership’s uninsured policy provide primary coverage for the plaintiffs injuries. We are unwilling to create such an anomaly by accepting the defendant’s argument. See Stein v. Hillebrand, 240 Conn. 35, 42-43, 688 A.2d 1317 (1997) (legislature presumed to have knowledge of existing laws and presumed to intend to create harmonious body of law).

Finally, we are unpersuaded that a construction of § 14-60 (a) to include uninsured motorist coverage would serve to effect the legislative policy embodied in § 14-60 (a). In providing that the borrower’s liability and property insurance is to be the primary source of coverage, § 14-60 (a) reflects the legislative effort to encourage careful driving of motor vehicles loaned by dealers. Uninsured motorist insurance protects against harm caused by an. inadequately insured third party, rather than providing coverage for damage that the insured causes. We cannot conceive how construing the references to liability and property insurance in § 14-60 (a) to include uninsured motorist coverage would enhance the fundamental purpose of the statute.

In light of the plain language, history and legislative purpose of §§ 14-60 (a) and 38a-336 (d), we conclude that the legislature did not intend to include uninsured motorist coverage within the liability and property insurance coverage provisions of § 14-60 (a). The defendant’s sole claim on appeal is that the arbitration panel failed to apply § 14-60 (a) in deciding that the defendant was required to provide primary uninsured motorist coverage to the plaintiff. Having concluded that § 14-60 (a) has no bearing on the resolution of this issue, we affirm the trial court’s decision not to vacate the arbitrators’ award.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 14-60 (a) provides: “No dealer or repairer may rent or allow or cause to be rented, or operate or allow or cause to be operated for hire, or use or allow or cause to be used for the purpose of conveying passengers or merchandise or freight for hire, any motor vehicle registered under a general distinguishing number and mark. No dealer or repairer may loan a motor vehicle or number plate or both to any person except for the purpose of demonstration of a motor vehicle, or when a motor vehicle owned by or lawfully in the custody of such person is undergoing repairs, or when such person has purchased a motor vehicle, the registration of which by him is pending, and in any case for not more than thirty days in any year, provided such person shall furnish proof to the dealer or repairer that he has liability and property damage insurance which will cover any damage to any person or property caused by the operation of the loaned motor vehicle, motor vehicle on which the loaned number plate is displayed or both. Such person’s insurance shall be the prime coverage. If the person to whom the dealer or repairer loaned the motor vehicle or the number plate did not, at the time of such loan, have in force any such liability and property damage insurance, such person and such dealer or repairer shall be jointly liable for any damage to any person or property caused by the operation of the loaned motor vehicle or a motor vehicle on which the loaned number plate is displayed. Each dealer or repairer shall keep a record of each loaned number plate showing the date loaned, the vehicle identification number of the vehicle on which such plate is displayed, the date returned and the name, address and operator’s license number of the person operating any vehicle with such loaned number plate. Such dealer or repairer shall give a copy of this record to each person to whom such plate or vehicle and plate are loaned which shall be carried in the motor vehicle at all times when operated upon a public highway. This record shall be retained by the dealer or repairer for a period of six months from the date on which the number plate or motor vehicle or both were loaned and such record shall be available during business hours for examination by any police officer or inspector designated by the Commissioner of Motor Vehicles.”

       Arbitrators Daniel E. Brennan, Jr., and Richard Mulrooney filed the majority decision. Arbitrator Carl E. Celia dissented and filed a separate opinion.

       General Statutes § 38a-336 (d) provides in relevant part: “If a person insured for uninsured and underinsured motorist coverage is an occupant of a nonowned vehicle covered by a policy also providing uninsured and underinsured motorist coverage, the coverage of the occupied vehicle shall be primary and any coverage for which such person is a named insured shall be secondary. All other applicable policies shall be excess. The total amount of uninsured and underinsured motorist coverage recoverable is limited to the highest amount recoverable under the primary policy, the secondary policy or any one of the excess policies. The amount paid under the excess policies shall be apportioned in accordance with the proportion that the limits of each excess policy bear to the total limits of the excess policies. If any person insured for uninsured and underinsured motorist coverage is an occupant of an owned vehicle, the uninsured and underinsured motorist coverage afforded by the policy covering the vehicle occupied at the time of the accident shall be the only uninsured and underinsured motorist coverage available.”