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

text:
    In re Romance M.

    (14804) (14878)
    Peters, C. J., Borden, Berdon, Katz and Palmer, Js.

      Argued March 29—
    decision released April 19, 1994

      Benjamin Zivyon, assistant attorney general, with whom were Dennis Antonacci, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellant in the first case, appellee in the second case (petitioner commissioner of children and youth services).

      Kathleen M. Harkins, with whom, on the brief, was Ronald E. Sobieraj, for the appellee in the first case, and Valerie Alexander, with whom was William R. Kinloch, for the appellant in the second case (respondent mother).

      Barbara J. Claire filed an appearance for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Supreme Court.
      Reporter of Judicial Decisions

       April 19, 1994, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Peters, C. J.

The principal issue underlying these two appeals is the propriety of terminating the parental rights of a mother who has been unsuccessful in coping with problems arising out of her personality disorder and her substance abuse. The appeals arise out of successive petitions brought by the petitioner, the commissioner of the department of children and youth services (commissioner), to terminate the parental rights of the respondent, Gail M. (mother), with respect to her young son, Romance M.

Romance was born on November 11, 1988, and was placed in foster care the following month. On January 5, 1989, the commissioner filed coterminous petitions, pursuant to General Statutes (Rev. to 1993) § 17a-112 (e), for commitment of Romance to the department of children and youth services and for termination of the mother’s parental rights. The ground alleged in the termination petition was that "the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being.” General Statutes § 17a-112 (b) (3).

The termination petition noted that the reason alleged for termination had existed for less than one year; see General Statutes § 17a-112 (b); but asked the court to waive the one year requirement in the best interest of the child. More than one year later, during the hearing on the coterminous petitions, the commissioner obtained the permission of the trial court to file an amended petition that alleged additional facts in support of the termination petition. The trial court, Axelrod, J., granted the commitment petition but refused to waive the one year provision and therefore denied the termination petition. On appeal, the Appellate Court affirmed the judgment of the trial court. In re Romance M., 30 Conn. App. 839, 860, 622 A.2d 1047 (1993). We granted the commissioner’s petition for certification to appeal from the judgment of the Appellate Court with respect to the applicability of the one year requirement in light of the date of the amended petition. This is Supreme Court Docket No. 14804.

During the pendency of the appeal to the Appellate Court, the commissioner filed a second petition to terminate the mother’s parental rights. This petition was grounded on the mother’s failure to rehabilitate herself subsequent to the finding of neglect. General Statutes (Rev. to 1993) § 17a-112 (b) (2). The trial court, Silbert, J., rendered a judgment granting the petition. The mother 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). This is Supreme Court Docket No. 14878.

Because the mother’s appeal directly challenges a fact finder’s determination that her parental rights should be terminated, the cause of justice will be served by resolving first the merits of her appeal. We conclude that the judgment in Docket No. 14878 must be affirmed. That affirmance leads us to dismiss the petition for certification in Docket No. 14804 as having been improvidently granted.

The Direct Appeal

In her appeal from the judgment rendered by Judge Silbert terminating her parental rights with respect to Romance, the mother has raised three issues. She maintains that the judgment terminating her parental rights should be set aside because the trial court improperly: (1) waived the one year requirement of § 17a-112 (b); (2) found that she had failed to rehabilitate herself as rehabilitation is defined by § 17a-112 (b) (2); and (3) found that termination was in the best interest of the child. General Statutes § 17a-112 (d). We are unpersuaded.

1

The mother claims first that the petition to terminate on the ground of § 17a-112 (b) (2) was premature because the petition was filed less than one year after the adjudication of Romance as a neglected and uncared for child. Although § 17a-112 (c) authorizes the trial court to waive this one year period, the mother claims that such a waiver was improper in her case.

The procedural history of this petition to terminate is as follows. In an order dated July 15,1991, the trial court, Axelrod, J., found that Romance was a neglected and uncared for child, and accordingly committed him to the custody and guardianship of the commissioner. The mother’s appeal to the Appellate Court did not challenge the validity of this order. In re Romance M., supra, 30 Conn. App. 839. On September 10, 1991, the trial court, Teller, J., granted the commissioner’s motion to set expectations for the mother’s conduct to rehabilitate herself. Concluding that the mother had not met these expectations, the commissioner filed a petition to terminate the mother’s rights on February 18, 1992. The petition was subsequently amended on May 29, 1992.

Section 17a-112 (b) (2) requires the commissioner to prove that a parent “of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding ha[s] failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, [she] could assume a responsible position in the life of the child.” The mother maintains that the commissioner cannot establish this ground for termination without also complying with the requirement, stated in the preamble to § 17a-112 (b), that any ground for termination shall have existed “over an extended period of time, which, except as provided in subsection (c) of this section, shall not be less than one year . . . .” From this premise, the mother argues that the trial court could not have granted the petition without waiving the one year requirement. The mother urges us to conclude that the trial court lacked an evidentiary foundation for its implied determination that such a waiver was appropriate.

This issue was not presented to the trial court. In the termination petition, the commissioner alleged that the reasons for termination had existed for “not less than one year.” Although represented by counsel, the mother did not contest this allegation. The mother’s defense against the termination petition challenged the underlying facts adduced by the commissioner but raised no question, either during the proceedings or in posttrial briefs, about the applicability of the one year rule to this case. Accordingly, the trial court, in its memorandum of decision, did not address the propriety of a waiver under § 17a-112 (c). The mother filed no motion for articulation in the trial court to rectify this omission. See Practice Book § 4051; Matza v. Matza, 226 Conn. 166, 187-88, 627 A.2d 414 (1993); Walton v. New Hartford, 223 Conn. 155, 164-65, 612 A.2d 1153 (1992).

Under Practice Book § 4185, this court “shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial.” We recognize that a mother has a fundamental constitutional right to retain her relationship with her child and that this right can only be severed in strict compliance with applicable statutory standards. In re Baby Girl B., 224 Conn. 263, 279-81, 618 A.2d 1 (1992); In re Jessica M., 217 Conn. 459, 464-66, 586 A.2d 597 (1991). Nonetheless, we have regularly observed that the rule of § 4185 “applies to constitutional claims. . . . [OJnly in [the] most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court. . . . Such exceptional circumstances may occur where a new and unforeseen constitutional right has arisen between the time of trial and appeal or where the record supports a claim that a litigant has been deprived of a fundamental constitutional right and a fair trial. ... An exception may also be made where consideration of the question is in the interest of public welfare or of justice between the parties.” (Citations omitted; internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 828-29, 614 A.2d 414 (1992). The mother has pointed us to no such exceptional circumstances in the present case. Accordingly, we decline to review the merits of this claim.

2

The mother’s second claim on appeal is that the trial court improperly found that she had failed to achieve such a degree of personal rehabilitation as would encourage the belief that, within a reasonable period of time, she could assume a responsible position with respect to the care of Romance. General Statutes § 17a-112 (b) (2). Without citing any particular evidence in the record, the mother maintains that, by the time of trial, she had made considerable progress in rehabilitating herself. In essence, this claim is a challenge to the sufficiency of the evidence at trial to support the trial court’s adjudicatory determination that the commissioner had proved, by clear and convincing evidence, this ground for termination of the mother’s parental rights. We disagree with the mother’s claim.

On appeal, we review a trial court’s finding that a parent has failed to rehabilitate herself in accordance with the rules that apply generally to a trier’s finding of fact. We will overturn such a finding of fact only if it is clearly erroneous in light of the evidence in the whole record. In re Luis C., 210 Conn. 157, 166, 554 A.2d 722 (1989). The trial court’s memorandum of decision cites ample evidence to support its determination in this case. The evidence at trial demonstrated that, despite her periodic participation in a variety of treatment programs, the mother suffers from a personality disorder and from chronic substance abuse. A court-appointed psychiatrist “favor[ed] termination of [the] mother’s parental rights . . . because of her excessive drinking, personality disorder and utter failure to recognize the consequences of her actions and to learn from them.” A court-appointed clinical psychologist, having made a similar diagnosis, was of the opinion that the mother’s past behavior indicated “a lack of likelihood of her ability to rehabilitate herself.” Direct observers of the mother’s interaction with Romance testified that her behavior was frequently inappropriate and inconsistent. This record contains substantial evidence of the mother’s failure to achieve a degree of rehabilitation that would reasonably encourage the belief that, within a reasonable period of time, she could assume a responsible position with respect to the care of Romance. We therefore reject the claim that the termination of her parental rights was improperly adjudicated.

3

After an adjudicatory determination that a ground for the termination of parental rights has been established, § 17a-112 (d) requires the trial court to make dispositional findings on each of six enumerated criteria to assure that termination is in the best interest of the child. In this case, the trial court found that each of these criteria had been factually established by clear and convincing evidence and therefore ordered the termination of the mother’s parental rights. The mother’s third claim on appeal challenges the validity of the trial court’s factual findings in the dispositive phase of the proceedings against her. Applying the standard of review noted earlier in this opinion; see supra; we agree with the commissioner that she adduced sufficient evidence to sustain these findings.

The overarching concern raised by the mother’s appeal on this issue transcends her disagreement with the specific factual findings of the trial court. The essence of her appeal is that the trial court, having found that she suffered from a personality disorder and from chronic substance abuse, took insufficient account of the fact that few persons recover from substance abuse without relapses. See In re Valerie D., 223 Conn. 492, 511-12, 613 A.2d 748 (1992). She emphasizes that she has continued to seek treatment and to maintain contact with Romance, and that there is some evidence that her substance abuse has decreased. In her view, the department of children and youth services provided inadequate services to facilitate her reunification with Romance. She maintains that she has achieved as much of an ongoing parent-child relationship as is feasible with a young child who has continuously been in foster care. In light of all the circumstances, therefore, she claims that her parental rights should not be terminated. For two reasons, we are not persuaded.

As a matter of fact, the evidence before the trial court supported its findings that the mother had been unable to bring her substance abuse under control and that there were no reasonable prospects that she would be able to do so in the near future. The court found that the mother had received appropriate assistance from the department of children and youth services and that, contrary to her assertions, she had ignored numerous counseling and treatment referrals. The court found that Romance’s foster mother has become Romance’s psychological parent, and that Romance relates to his biological mother only as “ ‘a person who visits.’ ” Finally, the court relied on the testimony of expert witnesses who stressed the importance of a permanent placement for Romance’s future health and development. These findings are all amply supported by the evidence of record. See In re Luis C., supra, 210 Conn. 166.

As a matter of law, it is important to remember that the trial court’s dispositional findings pursuant to § 17a-112 (d) followed its conclusion that the commissioner had established a ground of termination under § 17a-112 (b). As we observed in In re Barbara J., 215 Conn. 31, 47, 574 A.2d 203 (1990), the issues involved in a dispositional hearing to determine compliance with the criteria enumerated in § 17a-112 (d) come into play only after the completion of the adjudicatory phase of termination proceedings under § 17a-112 (b). At the dis-positional hearing, the emphasis appropriately shifts from the conduct of the parent to the best interest of the child. That shift in emphasis provides additional support for the trial court’s conclusion that the termination of the mother’s parental rights is warranted by Romance’s urgent need for a permanent placement.

The trial court’s memorandum of decision reflects a careful and extensive review of the evidence on which it relied in both the adjudicatory and the dispositional phases of the termination proceeding. On the mother’s direct appeal, we conclude, therefore, that the evidence sufficed to support the trial court’s determination that the mother’s parental rights should be terminated.

The judgment in Supreme Court Docket No. 14878 is affirmed.

The Certified Appeal

The certified appeal is an appeal by the commissioner from the judgment of the Appellate Court. The commissioner challenges the validity of the Appellate Court’s determination that the trial court, Axelrod, J., properly refused to waive the one year rule with respect to the commissioner’s earlier petition to terminate the mother’s parental rights. We granted certification to consider the effect of an amended termination petition on the applicability of the one year provision contained in § 17a-112 (b).

When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot. Moshier v. Goodnow, 217 Conn. 303, 306, 586 A.2d 557 (1991); Sobocinski v. Freedom of Information Commission, 213 Conn. 126, 134-35, 566 A.2d 703 (1989). This is such a case. Any further adjudication of the relationship between the mother and Romance has been rendered moot by our resolution of the mother’s direct appeal. The rights of any one parent with respect to any one child cannot be terminated more than once.

The commissioner urges us nonetheless to consider the merits of the certified appeal as raising an issue that is “capable of repetition, yet evading review.” See Moshier v. Goodnow, supra, 217 Conn. 307. This exception to the mootness rule applies if the issue “(1) could affect an ongoing program of the state penal or civil system, (2) could affect the complaining party in the future, and (3) involves a matter of public importance.” Goodson v. State, 228 Conn. 106, 115, 635 A.2d 285 (1993); Sobocinski v. Freedom of Information Commission, supra, 213 Conn. 135; Delevieleuse v. Manson, 184 Conn. 434, 437, 439 A.2d 1055 (1981). The availability of the exception depends upon all the relevant circumstances of each case.

After examining the record on appeal and after considering the briefs and the arguments of the parties, we conclude that the appeal in this case should be dismissed on the ground that certification was improvidently granted. Our certification was predicated upon the assumption that our decision would resolve a question of ongoing public importance about the events that are relevant to an adjudication of petitions for the termination of parental rights. If that assumption had continued validity, this appeal might well fall within the “capable of repetition, yet evading review” exception to the mootness rule. We are, however, persuaded that the promulgation of Practice Book § 1042.1, that became effective on October 1,1993, firmly establishes the applicable policy. Section 1042.1 (4) expressly provides: “In the adjudicatory phase, the court is limited to events preceding the filing of the petition or the latest amendment. . . . ” (Emphasis added.) That amendment in effect answers the certified question. It would be inconsistent with this Practice Book provision to hold that the one year period under General Statutes § 17a-112 (b) ends with the filing of a petition rather than with the filing of the latest amendment to the petition.

In light of the mootness of the judgment with respect to the underlying termination petition and the promulgation of Practice Book § 1042.1 (4), we conclude that this appeal no longer affords us an appropriate opportunity to undertake any further consideration of the question that we certified. See Booth v. Flanagan, 220 Conn. 453, 454-55, 599 A.2d 380 (1991); Lawler v. Lawler, 212 Conn. 117, 119, 561 A.2d 128 (1989). The petition for certification must be dismissed as having been improvidently granted.

The appeal from the Appellate Court in Supreme Court Docket No. 14804 is dismissed.

In this opinion Borden, Katz and Palmer, Js., concurred.

Berdon, J.,

concurring. I concur in the result.

       The mother does not challenge the contemporaneous termination of her parental rights with respect to some of her other children.

       General Statutes (Rev. to 1993) § 17a-112, formerly § 17-43a, provides in relevant part: “termination of parental rights of child committed TO COMMISSIONER. . . .
      “(e) Any petition brought by the commissioner of children and youth services to the superior court, pursuant to subsection (a) of section 46b-129, may be accompanied by a petition for termination of parental rights filed in accordance with this section with respect to such child, notwithstanding that such child has not been committed to the commissioner of children and youth services. Notice of the hearing on such petitions shall be given in accordance with sections 45a-716 and 45a-717. The superior court, after hearing, in accordance with the provisions of subsection (b) of this section, may, in lieu of granting the petition filed pursuant to section 46b-129, grant the petition for termination of parental rights as provided in section 45a-717.”

       General Statutes § 17a-112, formerly § 17-43a, provides in relevant part: “termination of parental rights of child committed to commissioner. . . .
      “(b) The superior court upon hearing and notice, as provided in sections 45a-716 and 45a-717, may grant such petition if it finds, upon clear and convincing evidence, that the termination is in the best interest of the child and that, with respect to any consenting parent, such parent has voluntarily and knowingly consented to termination of his parental rights with respect to such child or that, with respect to any nonconsenting parent, over an extended period of time, which, except as provided in subsection (c) of this section, shall not be less than one year . . . .”

       The second petition was dated February 13, 1992, and was amended effective May 29, 1992.

       General Statutes (Rev. to 1993) § 17a-112, formerly § 17-43a, provides in relevant part: “termination of parental rights of child committed to commissioner. . . .
      “(b) The superior court upon hearing and notice, as provided in sections 45a-716 and 45a-717, may grant such petition if it finds, upon clear and convincing evidence, that the termination is in the best interest of the child and that . . . with respect to any nonconsenting parent, over an extended period of time, which, except as provided in subsection (c) of this section, shall not be less than one year . . . (2) the parents of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding have failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, they could assume a responsible position in the life of the child . . . .”

       Counsel for the commissioner advised this court at oral argument that the commissioner was relying only on the allegation that the mother had failed to rehabilitate herself. An alternate allegation, that Romance “has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being”; General Statutes § 17a-112 (b) (3); has been withdrawn.

       General Statutes (Rev. to 1993) § 17a-112, formerly § 17-43a, provides in relevant part: “termination of parental rights of child committed to commissioner. . . .
      “(c) The court may waive the requirement that one year expire prior to the termination of parental rights if it finds from the totality of the circumstances surrounding the child that such a waiver is necessary to promote the best interest of the child.”

       Significantly, the trial court expressly noted that it might have to consider a waiver of the one year rule with respect to another child, Allan D., Jr., for whom the commissioner was simultaneously seeking an adjudication of neglect and a termination of parental rights.

       The mother presented no evidence at trial.

       General Statutes (Rev. to 1993) § 17a-112, formerly § 17-43a, provides in relevant part: “termination of parental rights of child committed TO COMMISSIONER. . . .
      “(d) Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered or provided to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (3) the feelings and emotional ties of the child with respect to his parents, any guardian of Ms person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (4) the age of the child; (5) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (6) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”

       We granted certification to appeal limited to the following issue: “Under the circumstances of this case, did the Appellate Court improperly conclude that the amendment to the petition related back to the date of the filing of the petition, for purposes of determining whether General Statutes § 17a-112 (b) applied?” In re Romance M., 226 Conn. 916, 916-17, 628 A.2d 988 (1993).


source: Caselaw Access Project

author: Borden, J. Berdon, J.,

license: Public Domain

text:
    Mark Williams v. State Farm Mutual Automobile Insurance Company
    (14722)
    Peters, C. J., Borden, Berdon, Katz and Palmer, Js.

      Argued January 6—
    decision released May 17, 1994

      James K. Smith, for the appellant (plaintiff).

      John W. Lemega, with whom was Daniel J. Scapellati, for the appellee (defendant).

      William I. Garfinkel, William F. Gallagher and Stewart M. Casper filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.
   Borden, J.

The principal issue in this appeal concerns the choice of state law applicable to this insurance contract dispute, involving an automobile accident that occurred in New York state. The plaintiff, Mark Williams, a resident of Connecticut, appeals from the judgment of the trial court denying his application to vacate the award of an arbitration panel in favor of the defendant, State Farm Mutual Automobile Insurance Company. The panel applied New York law rather than Connecticut law to the dispute, and concluded that the plaintiff was not entitled to recovery under New York law. The plaintiff claims that the trial court improperly: (1) applied New York law rather than Connecticut law; and (2) concluded that the plaintiff was not entitled to recovery under New York law. We affirm the judgment of the trial court.

The record reveals the following facts. On June 5, 1987, the plaintiff was operating his motor vehicle on a public thoroughfare in New Windsor, New York, when a vehicle owned and operated by Roily Bain negligently struck the plaintiffs vehicle. Bain carried a California motor vehicle operator’s license and his vehicle was registered in New York.

The plaintiff suffered neck and chest injuries as a result of the accident. He received medical treatment at the scene of the accident and was transported by ambulance to a hospital in West Point, New York. The injury to the plaintiff’s neck caused mild pain and inconvenience in the months following the accident and, as of January, 1991, the plaintiff continued to suffer discomfort and disruption of daily activities. Moreover, two physicians estimated a 10 to 15 percent permanent partial disability of the cervical spine. A third physician, however, reported no evidence of permanent injury. The plaintiff, a police officer, has not missed any work as a result of the injury. His medical expenses totaled $2253.

At the time of the accident, Bain, the tortfeasor, was insured for the $10,000 minimum under New York’s no-fault insurance law. Bain’s insurance carrier exhausted its liability coverage by virtue of a $10,000 payment to the plaintiff. The plaintiff, however, was insured by the defendant under a policy that provided uninsured motorist coverage in the amount of $25,000 per person and $50,000 per accident. The plaintiff sought compensation from the defendant for the $15,000 difference between his uninsured motorist coverage and Bain’s policy limit. The defendant denied liability and the plaintiff demanded arbitration pursuant to the policy.

For the purposes of arbitration, the defendant conceded that Bain’s negligence had been the sole cause of the accident and that Bain was underinsured in the amount of $15,000. The defendant argued, however, that it was not liable because the plaintiff’s policy entitled him only to damages that he was “legally entitled to collect”; see footnote 3; and that New York law governed the plaintiffs entitlement. The defendant further contended that under the New York no-fault insurance law, the plaintiff could not maintain an action against the tortfeasor because he had not sustained either “serious injury” or basic economic loss in excess of $50,000. The plaintiff, to the contrary, argued that Connecticut contract law governed the agreement between the parties, and that under Connecticut law the plaintiff was entitled to the benefits. The plaintiff also argued that even if New York law controlled, the plaintiff was legally entitled to collect damages because he had sustained a serious injury.

The arbitrators agreed with the defendant. They concluded that although Connecticut law governed the contract of insurance, New York law governed the question of whether the plaintiff was legally entitled to collect damages from the tortfeasor. Moreover, applying the “most significant relationship” analysis we utilized in O’Connor v. O’Connor, 201 Conn. 632, 519 A.2d 13 (1986), the panel determined that New York’s law should govern because its relationship to the case was more significant than that of Connecticut. Finally, the panel concluded that under New York law, the plaintiff was not entitled to collect damages from the tortfeasor because his injuries were not sufficiently severe.

Pursuant to General Statutes §§ 52-418 and 52-420, the plaintiff filed an application in the Superior Court to vacate the arbitrator’s award. The trial court denied the plaintiff’s application, essentially for the same reasons relied on by the arbitration panel in rejecting his claim for benefits. This appeal followed.

I

The plaintiff first claims that the trial court improperly concluded that the plaintiff’s right to collect damages under his insurance policy was determined by the law of New York. We are not persuaded.

The plaintiff’s argument is in two parts. First, the plaintiff argues that the case is controlled by Connecticut’s substantive law of contracts. Second, the plaintiff argues that even if the case were controlled by the substantive law of torts, the correct tort law to apply is that of Connecticut. We conclude that under either a tort or a contract analysis, the appropriate law to apply is that of New York. Thus, we need not determine which analysis to use.

A

We first turn to the plaintiff’s contention that for choice of law purposes this is a contract case. The plaintiff argues that the insurance policy is a contract between the plaintiff and the defendant. That contract, he contends, obligates the defendant to pay the plaintiff any damages the plaintiff is “legally entitled to collect from the owner or driver of an uninsured motor vehicle.” See footnote 3. The plaintiff argues that the phrase “legally entitled to collect” simply requires the injured party to prove fault by the uninsured motorist and the extent of damage. In addition, the plaintiff contends that the policy’s definition of uninsured motorists as motorists whose insurance liability limits “are less than required by the financial responsibility act of the state where your car is maintained or garaged”; see footnote 3; invokes Connecticut’s no-fault insurance law because the plaintiff’s car is maintained and garaged in Connecticut. The plaintiff relies finally on the rule of construction that ambiguity in an insurance contract is resolved against the insurance company that drafted the contract. See Beach v. Middlesex Mutual Assurance Co., 205 Conn. 246, 250, 532 A.2d 1297 (1987).

The defendant concedes portions of the plaintiffs argument. It is undisputed that the insurance policy is a contract between the plaintiff and the defendant, and that the defendant is obligated to pay the plaintiff for any damages that the plaintiff is “legally entitled to collect” from the uninsured motorist. Moreover, there is no dispute that the tortfeasor, as a motorist whose liability insurance limit was less than the plaintiffs insurance limit, fits the definition of uninsured motorist in the insurance policy.

The usual rule is that a contract is to be construed according to the law of the place where the contract was made. See Breen v. Aetna Casualty & Surety Co., 153 Conn. 633, 637, 220 A.2d 254 (1966). The mere existence of the right to pursue a claim for uninsured motorist benefits under the contract, however, does not in and of itself entitle the plaintiff to recover those benefits. In order to recover uninsured motorist benefits, the plaintiff must prove, pursuant to the applicable statutes and regulations, as well as the contract, that he is “legally entitled to collect” damages from the uninsured motorist. We disagree with the plaintiffs assertion that this phrase merely requires proof that the uninsured party was at fault.

The purpose of uninsured motorist coverage is to provide a personal injury claimant access to insurance protection to compensate for damages that would have been recoverable if the uninsured motorist had maintained an adequate policy of liability insurance. Smith v. Safeco Ins. Co. of America, 225 Conn. 566, 573, 624 A.2d 892 (1993); Bodner v. United Services Automobile Assn., 222 Conn. 480, 499, 610 A.2d 1212 (1992); Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 377, 593 A.2d 498 (1991); Harvey v. Travelers Indemnity Co., 188 Conn. 245, 249, 449 A.2d 157 (1982). Such insurance does not grant an injured party an enhanced right of recovery, beyond the recovery that would have been available had the tortfeasor maintained sufficient insurance. Smith v. Safeco Ins. Co. of America, supra, 573.

Under General Statutes (Rev. to 1991) § 38a-368, a cause of action based on the negligent operation of a motor vehicle is allowable only if certain conditions are satisfied. If those conditions are not satisfied, then the injured party has no recourse beyond the no-fault liability coverage. The plaintiffs argument, however, would put a party injured by an uninsured motorist in a better position than a party injured by a sufficiently insured motorist. If the contractual phrase “legally entitled to collect from the owner or driver of an uninsured motor vehicle” entitled the plaintiff to recover simply upon proof of fault and damages, without proof of the conditions specified in § 38a-368, then the plaintiff would have an additional remedy not available to persons injured by sufficiently insured motorists. Thus, the phrase must have a meaning other than that suggested by the plaintiff.

We do not find the contractual language to be ambiguous and therefore we interpret it according to its plain meaning. “Legally entitled to collect damages from the owner or driver of an uninsured motor vehicle,” means that in order to recover under the policy, the plaintiff must prove: (1) that the other motorist was uninsured; (2) that the other motorist was legally liable under the prevailing law; and (3) the amount of liability. Whether the uninsured motorist was legally liable must be determined in light of any substantive defenses that would have been available to the uninsured motorist. See Rhault v. Tsagarakos, 361 F. Sup. 202 (D. Vt. 1973); State Farm Mutual Automobile Ins. Co. v. Griffin, 51 Ala. App. 426, 286 So. 2d 302 (1973); State Farm Mutual Automobile Ins. Co. v. Girtman, 113 Ga. App. 54, 147 S.E.2d 364 (1966); Winner v. Ratzlaff, 211 Kan. 59, 505 P.2d 606 (1973).

In this case, any liability that would have attached to the uninsured motorist would have attached under the substantive law of New York. The rules for an action against a New York resident regarding a New York accident are clear. As the plaintiff conceded in oral argument before this court, if he had wished to sue the tortfeasor personally, the proper jurisdiction would have been New York. In that New York action, the tortfeasor would have been entitled to raise the no-fault threshold of New York insurance law as a substantive defense. Thus, the tortfeasor’s liability under the contract must be determined in light of New York no-fault insurance law.

Even if we were to interpret the contractual phrase to refer to damages that the plaintiff is “legally entitled to collect” under Connecticut’s motor vehicle insurance laws, the case would ultimately be referred to New York law. Under § 38a-336; see footnote 6; an injured party must exhaust his remedies against the tortfeasor before he is legally entitled to collect damages under uninsured motorist coverage. General Accident Ins. Co. v. Wheeler, 221 Conn. 206, 213 n.7, 603 A.2d 385 (1992); Continental Ins. Co. v. Cebe-Habersky, 214 Conn. 209, 212-13, 571 A.2d 104 (1990). In this case, the condition of exhaustion was satisfied because the tortfeasor’s liability insurance company settled the case by paying the plaintiff the tortfeasor’s entire policy limit. Had it not done so, however, the plaintiff would have had to exhaust his remedies by suing the tortfeasor; and he would have been required to do so in New York. We decline to adopt a rule of contract interpretation that makes the choice of law depend upon the fortuity of whether the tortfeasor, or its liability carrier, chooses to settle the case without a contest. Consequently, even if we were to accept the plaintiff’s contention that the case is governed by Connecticut’s law of contracts and motorist insurance, the dispositive legal standards would be imported from New York.

B

We reach the same conclusion based on an analysis grounded in the law of torts. The plaintiff contends that under §§ 6 and 145 of the Restatement (Second) of the Conflict of Laws, which we utilized in O’Connor v. O’Connor, supra, 201 Conn. 650, the correct law to apply is that of Connecticut. We disagree.

“This court has traditionally adhered to the doctrine that the substantive rights and obligations arising out of a tort controversy are determined by the law of the place of injury, or lex loci delicti. Gibson v. Fullin, [172 Conn. 407, 411, 374 A.2d 1061 (1977)]; Menczer v. Menczer, 160 Conn. 563, 564-65, 280 A.2d 875 (1971); Landers v. Landers, 153 Conn. 303, 304, 216 A.2d 183 (1966); Orr v. Ahern, 107 Conn. 174, 176, 139 A. 691 (1928).” O’Connor v. O’Connor, supra, 201 Conn. 637. Recently, however, we have recognized that, in certain circumstances in which the traditional doctrine does not apply, the better rule is the analysis contained in the Restatement (Second) of the Conflict of Laws.

One such case was Simaitis v. Flood, 182 Conn. 24, 33, 437 A.2d 828 (1980). In Simaitis, a passenger in an automobile brought an action in negligence against the driver of the automobile for injuries caused by an automobile accident in Tennessee. Both parties were Connecticut domiciliaries employed by a Connecticut corporation, and the accident occurred while they were travelling in the course of their employment. The worker’s compensation act of Tennessee barred the plaintiff’s action, but the Connecticut Workers’ Compensation Act permitted such an action. Applying the rule of lex loci delicti, the trial court granted the defendant’s motion for summary judgment on the basis of Tennessee law. We concluded that application of the lex loci delicti rule in these circumstances was unsatisfactory because it would “bestow upon temporary visitors injured in Connecticut all the relief which the Connecticut compensation act affords, but deny that same relief to Connecticut residents injured while on temporary business outside the state, even when all other incidents of employment . . . are in Connecticut.” Id., 29-30. We resolved the conflict by weighing the respective interests of Connecticut and Tennessee in applying their law to the controversy, in the manner of the Restatement, and concluded that the law of Connecticut governed the plaintiff’s right to recover. Id., 33-34.

In O’Connor v. O’Connor, supra, 201 Conn. 648, we expressly abandoned “categorical allegiance” to the doctrine of lex loci delicti in tort actions. 0 ’Connor also involved an action by the passenger of an automobile against the driver for injuries arising out of an automobile accident. Both parties were Connecticut domiciliaries but the accident occurred in Quebec, Canada. The principal issue was whether to apply the law of Quebec, which barred the plaintiff’s action, or the law of Connecticut, which permitted it. The trial court applied the doctrine of lex loci delicti and granted the defendant’s motion to strike the plaintiff’s complaint. On appeal, we substituted the “most significant relationship” analysis of §§ 6 and 145 of the Restatement; see footnote 12; for the doctrine of lex loci delicti. Id., 650. After considering the Restatement factors, we concluded that Connecticut had the closest relationship and the greatest interest in the disposition of the case. We therefore applied the law of Connecticut.

In this case, however, an analysis based on the Restatement leads us to apply the law of New York. Section 145 of the Restatement lists the contacts of each jurisdiction that are factors in determining the choice of law under § 6. These contacts include: (a) the place of injury; (b) the place where the conduct causing the injury occurred; (c) the domiciles of the parties; and (d) the place where the relationship, if any, between the parties is centered. See footnote 12. In this case, the injury occurred in New York due to conduct occurring in New York. Thus, factors (a) and (b) point toward the application of New York law. According to the Restatement, those two factors are the most significant in determining which state’s tort law to apply. As comment (e) to § 145 provides: “When the injury occurred in a single, clearly ascertainable state and when the conduct which caused the injury also occurred there, that state will usually be the state of the applicable law . . . .” Moreover, factor (c) is inconclusive because the plaintiff is domiciled in Connecticut but the tortfeasor carried a California motor vehicle operator’s license and registered his car in New York. Finally, factor (d) is irrelevant because there was no relationship between the parties other than the accident. Thus, on the whole, we conclude that New York had the greatest contact with the parties.

The interests to be considered in determining the choice of law under § 6 also affirm the application of New York law. For purposes of this analysis, the relative policy interests of New York and Connecticut are the most important factors.

The first factor to be considered is the relevant policy interest of the forum state, Connecticut. The plaintiff contends that Connecticut has an interest in protecting its residents with uninsured motorist coverage, and that we should therefore apply our own law in order to ensure the plaintiff access to sufficient coverage. The plaintiff is correct that Connecticut has such an interest: our uninsured motorist statute is remedial in nature and designed to protect people injured by uninsured motorists. See, e.g., Streitweiser v. Middlesex Mutual Assurance Co., supra, 219 Conn. 377; American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 197, 530 A.2d 171 (1987); Harvey v. Travelers Indemnity Co., supra, 188 Conn. 250-51.

The plaintiff’s argument, however, overlooks the fact that the plaintiff was entitled to, and in this case actually received, no-fault insurance benefits. New York, like Connecticut, has a comprehensive scheme of insurance coverage and, if the case is to be decided under New York law, the plaintiff is subject to the benefits of New York no-fault insurance as well as the limitations. Indeed, New York’s no-fault insurance minimum is considerably higher than that of Connecticut. Thus, Connecticut’s concern for the protection of its residents is satisfied in this case if the plaintiff’s claim is governed by the law of New York.

The second factor to be considered is the relevant policy interest of the state with the greatest connection with the injury, New York. The plaintiff contends that New York’s policy of containing no-fault premiums and reducing litigation arising from automobile accidents; see Licari v. Elliot, 57 N.Y.2d 230, 441 N.E.2d 1088, 455 N.Y.S.2d 570 (1982); is not advanced by application of New York law to this Connecticut arbitration. Although we agree that New York has less interest in the efficiency of Connecticut’s legal processes than it has in its own, we do not agree that New York’s interest is as insignificant as the plaintiff contends. This automobile accident occurred in New York and the plaintiff received his preliminary medical care in New York. Moreover, the tortfeasor’s vehicle was registered in New York. Application of the law of a state other than New York in such circumstances could inject an element of uncertainty into New York insurance policies. Such a result could have a deleterious effect on New York’s goals of reducing litigation and the cost of premiums in New York. Moreover, New York has no interest in the application of the law of Connecticut to this case.

In addition, the courts of Connecticut can easily apply the law of New York in this case. New York provides a simple test for determining whether an injured motorist is permitted to bring an action in tort. See footnote 5. There is little risk of overburdening Connecticut courts or misapplying New York law if, in the circumstances of this case, New York’s threshold is applied.

Weighing these interests, we conclude that the law of New York is the correct law to apply in the circumstances of this case. Connecticut’s interests are sufficiently satisfied by the application of New York law, and New York’s interests are satisfied in the application of its own law. Most important, New York has the greatest contact with the conduct that gave rise to the case.

Courts of other states have reached similar conclusions in similar circumstances. In State Farm Mutual Auto Ins. Co. v. Crockett, 103 Cal. App. 3d 652, 163 Cal. Rptr. 206 (1980), the California Court of Appeals applied Hawaii law to bar a claim for uninsured motorist benefits brought by two California residents who were injured in an automobile accident while in Hawaii. The insurance contract of the California residents provided compensation for damages that they were “legally entitled to recover,” but the injuries they sustained were insufficient to permit a cause of action under Hawaii no-fault law. The court concluded that since the California residents were not entitled to recover from the uninsured motorist, they were not entitled to recovery under the policy.

Similarly, in Berardi, U.S.A. v. Employers Mutual Casualty Co., 526 A.2d 515, 516 (R.I. 1987), the Supreme Court of Rhode Island applied the “interest-weighing approach” to a case almost identical to the present one. The plaintiffs in Berardi, U.S.A., were driving an automobile registered in Rhode Island in New York when they collided with an automobile driven by an uninsured resident of New York. The relevant insurance contract provided that the plaintiffs could recover damages that they were “legally entitled to recover” from the uninsured motorist. The plaintiffs’ injuries, however, were insufficient to allow an action in tort under New York’s no-fault insurance law. The court weighed the interests of the two states and decided to apply the law of New York, which it held to bar recovery under the contract.

II

The plaintiff next claims that, even if New York law governs this case, the trial court improperly agreed with the arbitration panel that the plaintiff’s suit was barred by New York no-fault insurance law. We disagree with the plaintiff’s claim.

Under New York no-fault insurance law, an injured party is not entitled to bring an action in negligence except in the case of “serious injury,” or “basic economic loss” in excess of $50,000. See footnote 5. The arbitration panel concluded that the plaintiff’s harm was insufficient to cross this threshold, and the trial court agreed with this factual finding.

In reviewing an arbitration panel’s factual findings regarding underinsured motorist coverage, the trial court is required to determine whether the arbitrators’ findings are supported by substantial evidence. Rydingsword v. Liberty Mutual Ins. Co., 224 Conn. 8, 21, 615 A.2d 1032 (1992); Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 656, 591 A.2d 101 (1991). This test requires that the court search the entire record in order to determine, de novo, whether the arbitration panel’s findings of fact were supported by substantial evidence. Chmielewski v. Aetna Casualty & Surety Co., supra, 667.

There is no doubt in this case that the plaintiff has not suffered basic economic loss in excess of $50,000. The plaintiff’s medical expenses totaled $2253 and he missed no work as a result of the injury. Thus, the question centers on whether the plaintiff sustained serious physical injury under the definition of § 5102 (d) of the New York Insurance Law.

The records of one physician indicated that the plaintiff had suffered no permanent disability as a result of the accident. The records of two other physicians indicated that the plaintiff had suffered, at worst, a 15 percent permanent partial disability of the cervical spine. Although the plaintiff testified to persistent discomfort from the injury, the record indicates that he has continued to work, exercise, and essentially maintain his customary lifestyle. The New York courts have consistently maintained that greater injury than this is required to qualify as serious injury in this context. See, e.g., Partlow v. Meehan, 155 App. Div. 2d 647, 548 N.Y.S.2d 239 (1989); McKnight v. LaValle, 147 App. Div. 2d 902, 537 N.Y.S.2d 421, appeal denied, 74 N.Y.2d 605, 541 N.E.2d 427, 543 N.Y.S.2d 398 (1989); Popp v. Kremer, 124 App. Div. 2d 720, 508 N.Y.S.2d 470 (1986); Lowe v. Bennett, 122 App. Div. 2d 728, 511 N.Y.S.2d 603, aff’d, 69 N.Y.2d 700, 504 N.E.2d 691, 512 N.Y.S.2d 364 (1986). Thus, substantial evidence supports the trial court’s conclusion that the arbitration panel correctly found that the plaintiffs injuries had not met the New York “serious injury” threshold.

The judgment is affirmed.

In this opinion Peters, C. J., Katz and Palmer, Js., concurred.

Berdon, J.,

dissenting. I respectfully disagree. Under the facts of this case, we are required to apply Connecticut law to the contract of insurance that was issued to a Connecticut resident and is silent as to the law that is to be applied.

The majority predicates its opinion on the claim that the contractual language of the insurance policy— “legally entitled to collect damages”—is unambiguous. That simply is not the case. It certainly is arguable that the phrase in question could mean that, in order to recover under the uninsured/underinsured provisions of the policy, the insured must prove that the other driver was legally liable for the payment of damages as the majority states. It is, however, equally persuasive that the contract language merely means that the plaintiff must establish that the other driver was at fault. See 1 A. Widiss, Uninsured and Underinsured Motorist Insurance (2d Ed. 1990) § 7.6, pp. 263-64 (language “legally entitled to recover” is ambiguous).

Because the contract language is ambiguous, I would construe it in favor of the plaintiff. “It is a basic principle of insurance law . . . that ambiguities in contract documents are resolved against the party responsible for its drafting; the policyholder’s expectations should be protected as long as they are objectively reasonable from the layman’s point of view.” Cody v. Remington Electric Shavers, 179 Conn. 494, 497, 427 A.2d 810 (1980); S & S Tobacco & Candy Co. v. Greater New York Mutual Ins. Co., 224 Conn. 313, 320, 617 A.2d 1388 (1992); King v. Travelers Ins. Co., 123 Conn. 1, 4-5, 192 A. 311 (1937); see 1 A. Widiss, supra, p. 264 (“legally entitled” contract language being ambiguous, it should be construed against the insurer).

Accordingly, I would construe the “legally entitled” contract language to mean that the insured must establish that the uninsured/underinsured motorist was at fault. This construction has been adopted by a substantial number of jurisdictions. See, e.g., Allstate Ins. Co. v. Elkins, 77 Ill. 2d 384, 390, 396 N.E.2d 528 (1979); Matter of De Luca, 17 N.Y.2d 76, 80-81, 215 N.E.2d 482, 268 N.Y.S.2d 289 (1966); Karlson v. Oklahoma City, 711 P.2d 72, 74-75 (Okla. 1985); Sahloff v. Western Casualty & Surety Co., 45 Wis. 2d 60, 68-69, 171 N.W.2d 914 (1969); 3 A. Widiss, supra, § 34.2, p. 33 (“[a] very persuasive case exists for allowing an insured to recover underinsured motorist insurance when a tort immunity precludes securing indemnification from a tortfeasor”).

Because I would find no contractual impediment to the plaintiffs recovery in this case, it must next be determined whether the law of Connecticut—the place where the contract was entered into—or the law of New York—the place where the accident occurred—should control. In making this determination, I would hold that contract choice of law principles are most appropriately applied to the facts of this case. Davis v. State Farm Mutual Automobile Ins. Co., 264 Or. 547, 549, 507 P.2d 9 (1973) (holding that action to collect the proceeds of an uninsured motorist policy arising out of injuries caused by the tortfeasor is controlled by contract, not tort, choice of law principles); see Matter of De Luca, supra, 17 N.Y.2d 80-81 (applying six year contract statute of limitations, rather than three year tort statute of limitations, to action against uninsured motorist carrier).

Contract choice of law principles mandate the application of Connecticut law. The general rule is that when the contract is silent as to the choice of law, the controlling law is that of the place where the contract was entered. See Breen v. Aetna Casualty & Surety Co., 153 Conn. 633, 637, 220 A.2d 254 (1966). It is undisputed that the contract of insurance was issued in Connecticut. Furthermore, a contract of automobile insurance issued in Connecticut must meet the state’s minimum uninsured/underinsured motorist coverage requirements. See General Statutes (Rev. to 1991) § 38a-336 (a) (1). Accordingly, the uninsured/under-insured motorist laws of this state would be applicable, including the conditions established by General Statutes (Rev. to 1991) § 38a-368, which establishes Connecticut’s no-fault threshold, rather than New York’s no fault threshold.

This court’s reasoning in the closely analogous case of Jenkins v. Indemnity Ins. Co., 152 Conn. 249, 205 A.2d 780 (1964), is persuasive and should control this case. In Jenkins, a policy of insurance was issued to the plaintiff in New York. The plaintiff’s wife was injured in an accident occurring in Connecticut while a passenger in his automobile. The defendant insurer who had issued the policy “denied liability under the policy, and refused to defend any action brought by the wife, on the ground that the wife’s claim was an inter-spousal claim against her husband and, as such, was excluded from coverage by” New York law. Id., 252. She sued the plaintiff in Connecticut and recovered a judgment against him, and the plaintiff sued for a declaratory judgment seeking to hold the defendant liable. Id., 253. The plaintiff claimed that Connecticut law should apply because “the policy was to apply ‘within the United States of America, its territories or possessions, or Canada,’ ” and therefore “its place of operative effect is wherever, within those territorial limits, an accident occurs.” Id., 254. This court in Jenkins acknowledged a qualification to the general rule that the law of the place where the contract entered into controls: “[I]f the contract is to have its operative effect or place of performance in a jurisdiction other than the place where it was entered into, our rule is that the law of the place of operative effect or performance governs its validity and construction.” Id., 253. Nevertheless, this court determined that the “operative effect” principle was inapplicable, reasoning that it was not “consistent with the purpose of the parties in entering into the contract. Presumably, that purpose was to fix in advance their rights and liabilities in the event of an accident, at least so far as the construction and interpretation of the contract are concerned, rather than to leave them dependent upon the fortuitous circumstance of the place of the accident. Indeed, the assumption underlying our applicable conflicts rule is that when parties enter into a contract they do so with the law of a specific jurisdiction in mind. . . . There is nothing in the instant case to suggest that this assumption is unfounded with respect to this insurance contract.” (Citation omitted.) Id., 254.

Accordingly, in Jenkins, this court recognized a limitation to the principle that the law of the place of operative effect or place of performance controls. We held that when a contract of insurance is silent as to the choice of law and intended to be operative in any one of numerous jurisdictions, the validity and construction of such a contract is governed by the law of the place where the insurance policy was issued. Id.

In the present case, as in Jenkins, the contract of insurance covered the plaintiff not only in New York (the place where the accident occurred) but within the entire United States, its territories and possessions, Canada and Puerto Rico. Accordingly, the law to be applied here is the place where the contract was issued—Connecticut. This choice of law result is supported by other jurisdictions. See, e.g., Davis v. State Farm Mutual Automobile Ins. Co., supra, 264 Or. 549, citing Grayson v. National Fire Ins. Co., 313 F. Sup. 1002, 1007 (D.P.R. 1970). In Davis, the plaintiff sought recovery under his own uninsured motorist coverage, issued in Michigan, when a third party intentionally injured him with an automobile in Oregon. The Oregon Supreme Court held: “The parties do not agree whether Oregon or Michigan law applies. Courts have much difficulty with conflicts of law questions in the tort field. However, this case is an action upon a contract. The contract was entered into in Michigan under the authority of a Michigan statute and .was issued to Michigan residents. The place of [the] plaintiffs injury was fortuitous. Under such a set of facts, Michigan law applies.” Davis v. State Farm Mutual Automobile Ins. Co., supra, 549.

The majority also points out that if the insurer of the tortfeasor had not settled by paying the entire proceeds of the tortfeasor’s insurance policy, the “exhaustion” rule of Continental Ins. Co. v. Cebe-Habersky, 214 Conn. 209, 212-13, 571 A.2d 104 (1990), would apply. In Continental Ins. Co., a three to two decision in which Justices Shea and Callahan vigorously dissented; id., 214; the court held that the exhaustion requirements of uninsured/underinsured motorist law would not be satisfied by crediting the insurer with the full policy limits of the tortfeasor’s policy. Id., 213. Instead, the court held that the insurer of the tortfeasor must pay the full amount of that policy, either voluntarily or through litigation, before the injured party can seek indemnification under his or her own uninsured/under-insured motorist coverage. Id.

Accordingly, the majority states that if the tortfeasor had contested liability in the present case, the plaintiff, in order to comply with Continental Ins. Co., would have been required to bring an action against the tortfeasor in New York and that action would have failed because the threshold under New York law would not be met. I agree that a strict reading of Continental Ins. Co. would produce an anomalous choice of law result based on whether the insurer of the tortfeasor has chosen to settle or litigate the underlying dispute.

Nevertheless, we have demonstrated by the recent unanimous decision in General Accident Ins. Co. v. Wheeler, 221 Conn. 206, 603 A.2d 385 (1992), our willingness to trim the sails of Continental Ins. Co. In Wheeler, we held, relying substantially on the reasoning of the Continental Ins. Co. dissent, that when there are two or more tortfeasors, the insured need only exhaust the policy of one of the tortfeasors. General Accident Ins. Co. v. Wheeler, supra, 213. I would further limit Continental Ins. Co. and hold that when the forum in which an action is required to be brought against the tortfeasor has established lawsuit prerequisites that are greater than those of our state law, but the underlying insurance policy is issued in Connecticut to a Connecticut resident, the purposes of our uninsured/underinsured motorist statute are satisfied by giving the insurer a full credit for the tortfeasor’s available insurance coverage.

I would hold that the arbitrators should have applied Connecticut law. Because it is undisputed that the plaintiff met Connecticut’s no-fault threshold, the arbitrator should have determined whether he was entitled to damages beyond the amount recovered from the tortfeasor’s insurance policy. Accordingly, I would reverse the trial court’s judgment, and remand this matter to the trial court with instruction to grant the plaintiff’s application to vacate the arbitration award.

       The plaintiff appealed from the judgment of the trial court to the Appellate Court. We transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       See N.Y. Ins. Law § 5101 et seq. (McKinney 1985).

       Section III of the insurance policy issued by the defendant to the plaintiff provides in relevant part: “We [the defendant] will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. . . . Uninsured Motor Vehicle—means: 1. a land motor vehicle, the ownership, maintenance or use of which is . . . insured or bonded for bodily injury liability at the time of the accident; but— (1) the limits of liability are less than required by the financial responsibility act of the state where your [the plaintiffs] car is maintained or garaged; or (2) the insuring company denies coverage or becomes insolvent; or (3) the sum of the limits of liability of all policies and bonds that apply is less than the limits of liability of this and any other uninsured motor vehicle coverage applicable to the insured.” (Emphasis added.)
      An amendment to the policy further provides in relevant part: “Deciding Fault and Amount—Arbitration
      “Two questions must be decided by agreement between the insured and us: 1. Is the insured legally entitled to collect damages from the owner or driver of the uninsured motor vehicle; and 2. If so, in what amount? If there is no agreement, these questions shall be decided by arbitration . . . .” (Emphasis added.)

       The defendant specifically did not concede that the plaintiff’s injuries warranted the additional $15,000 in damages.

       Section 5104 of the New York Insurance Law (McKinney 1985) provides in relevant part: “CAUSES OF ACTION FOR personal injury, (a) Notwithstanding any other law, in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss.”
      Section 5102 (a) of the New York Insurance Law (McKinney 1985) defines “basic economic loss” as up to $50,000 per person of medical expenses, lost earnings, and specified incidental expenses. Section 5102 (d) defines “serious injury” as “personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.”

       General Statutes (Rev. to 1991) § 38a-336 provides in relevant part: “UNINSURED motorist COVERAGE, (a) (1) Each automobile liability insurance policy shall provide insurance, herein called uninsured motorist coverage, in accordance with the regulations adopted pursuant to section 38a-334, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-113, 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.” This statute has been amended in ways that do not affect the current appeal. See Public Acts 1993, No. 93-77, §§ 2, 4, and No. 93-297, §§ 1, 29.

       The plaintiff relies on the following cases for that proposition: Baker v. Continental Western Ins. Co., 748 F. Sup. 716 (W.D.S.D. 1990); Allstate Ins. Co. v. Elkins, 63 Ill. App. 3d 62, 381 N.E.2d 1 (1978), aff’d, 77 Ill. 2d 384, 396 N.E.2d 528 (1979); Leuchtenmacher v. Farm Bureau Mutual Ins. Co., 461 N.W.2d 291 (Iowa 1990); Winner v. Ratzlaff 211 Kan. 59, 505 P.2d 606 (1973); Gremillion v. State Farm Mutual Automobile Ins. Co., 302 So. 2d 712 (La. App.), cert. denied, 305 So. 2d 134 (La. 1974); Matter of De Luca, 17 N.Y.2d 76, 215 N.E.2d 482, 268 N.Y.S.2d 289 (1966); Karam v. Allstate Ins. Co., 27 Ohio App. 3d 137, 500 N.E.2d 358 (1985). The statutes and issues in these cases have varying degrees of kinship to our own. To the extent that the cases support the plaintiff’s claim, we reject them for the reasons given below.

       General Statutes (Rev. to 1991) § 38a-368 provides in relevant part: “CAUSE OF ACTION ALLOWABLE, WHEN, (a) No cause of action to recover economic loss or noneconomic detriment based on negligence arising out of the ownership, maintenance or use of a private passenger motor vehicle may be maintained against an owner, registrant, operator or occupant ol' a private passenger motor vehicle with respect to which security has been provided as required by sections 38a-19 and 38a-363 to 38a-388, inclusive, or against any person or organization legally responsible for his acts or omissions, unless the injured party has sustained (1) death, (2) permanent injury, (3) fracture of any bone, (4) permanent significant disfigurement, (5) permanent loss of any bodily function, (6) loss of a body member or (7) allowable expense as defined in section 38a-363 in excess of four hundred dollars. Any person who receives free medical, hospitalization and surgical care shall be deemed to meet the requirement of subdivision (7) if the reasonable value of such care exceeds four hundred dollars.” This statute has since been repealed. Public Acts 1993, No. 93-297, §§ 28, 29.

       Although the contract refers only to an “uninsured motorist,” it is undisputed that this phrase also includes, as in this case, an underinsured motorist. See footnote 3. Thus, in this context, the plaintiff must prove that his damages exceed the amount of liability coverage of the tortfeasor.

       Some courts have held that this determination does not include personal or procedural defenses. See Winner v. Ratzlaff, supra, 211 Kan. 59; Matter of De Luca, 17 N.Y.2d 76, 215 N.E.2d 482, 268 N.Y.S.2d 289 (1966). Because no-fault coverage is a substantive defense in New York and Connecticut, we need not decide that question.

       Unless the plaintiff could serve process on the tortfeasor while the tortfeasor happened to be passing through Connecticut, our courts could not obtain personal jurisdiction over the tortfeasor.

       Section 6 of the Restatement, supra, provides: “choice-of-law principles
      “(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
      “(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include
      “(a) the needs of the interstate and international systems,

        “(b) the relevant policies of the forum,
      “(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
      “(d) the protection of justified expectations,
      “(e) the basic policies underlying the particular field of law,
      “(f) certainty, predictability and uniformity of result, and “(g) ease in the determination and application of the law to be applied.” Section 145 of the Restatement, supra, provides: “the general principle
      “(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
      “(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
      “(a) the place where the injury occurred,
      “(b) the place where the conduct causing the injury occurred,
      “(c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and
      “(d) the place where the relationship, if any, between the parties is centered.
      “These contacts are to be evaluated according to their relative importance with respect to the particular issue.”

       For the purposes of this analysis, we note that the relevant parties are the plaintiff and the tortfeasor, not the plaintiff and the defendant. Under General Statutes § 38a-366, the plaintiff can recover from the defendant only what he could have recovered from an adequately insured tortfeasor.

       See also § 146 of the Restatement, supra, which provides: “personal injuries
      “In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.”

       In dicta in 0 ’Connor, we stated that the choice of law would have been "much more problematic,” and that Quebec law would have been “entitled to greater weight” if the accident had involved a Quebec resident. O’Con-nor v. O’Connor, supra, 201 Conn. 632.

       The other factors listed in § 6 of the Restatement, supra, are less important in this case. Predictability and the protection of settled expectations are less significant because the settled expectations of parties are generally less important in unintentional torts than they are in fields such as contracts, property, and wills and trusts, in which parties make plans on the basis of the legal consequences of their conduct. See O’Connor v. O’Connor, supra, 201 Conn. 651-52; Restatement, supra, § 6, comment (i), and § 145, comment (b). Moreover, this case does not implicate interstate or international relations.

       It is unclear whether the no-fault benefits were paid under the law of Connecticut or New York.

       The coverage limit in New York is $50,000. See N.Y. Ins. Law §§ 5102 (a), 5103, 5107 (McKinney 1985); 11 N.Y. Comp. Codes, R. & Regs. § 60-1.1. In Connecticut, the limit at the time was $5000. General Statutes (Rev. to 1987) § 38-320, now § 38a-365.

       Professor Alan Widiss, in his treatise on uninsured motorist insurance, observes that courts in most jurisdictions facing choice of law questions involving uninsured motorist coverage have resolved the questions in accordance with their general approach to choice of law questions, rather than the bare contractual language. 1 A. Widiss, Uninsured and Underinsured Motorist Insurance (2d Ed. 1990) § 7.15.

       I would accordingly hold that the statutory mandate requiring that uninsured/underinsured motorist policies protect those insured parties who are “legally entitled to recover damages”; General Statutes (Rev. to 1991) § 38a-336 (a) (1); should be given the same interpretation—that is, the insured party must be able to prove fault, but is not necessarily restricted by tort immunities or other procedural bars to liability against the tortfeasor. See Sahloff v. Western Casualty & Surety Co., supra, 45 Wis. 2d 69. This construction is in accordance with the established public policy of the uninsured/underinsured motorist statutes. “The public policy embodied in these statutes ‘favors indemnification of accident victims unless they are responsible for the accident.’ Widiss, A Guide to Uninsured Motorist Coverage (1969) § 2.9, p. 29.” Harvey v. Travelers Indemnity Co., 188 Conn. 245, 250, 449 A.2d 157 (1982).

       Even if I were to determine that the issues in this case implicate both contract and tort principles and require an interest-balancing choice of law analysis, I would come to the same conclusion. Section 6 of the Restatement (Second) of the Conflict of Laws provides: “(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law. (2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.”
      Applying these factors, I note first that, as the majority points out, the issue raised by this case has no bearing on the interstate and international systems. As for factors (b) and (e), the public policy embodied in these statutes, as previously noted, favors indemnification of accident victims unless they are responsible for the accident. I disagree with the majority, however, that this public policy is satisfied by just any recovery; it is best furthered by application of Connecticut’s no-fault threshold so that the accident victim is indemnified to the extent that Connecticut’s public policy, expressed through its statutory law, demands for its citizens. With regard to factor (c), application of Connecticut’s no-fault threshold will affect no public policy interest of New York. As for factor (d), I believe that, realistically speaking, the justified expectations of the parties to this case would demand the application of Connecticut law. It is unlikely that the plaintiff intended the amount of his indemnification to depend on the vagaries of the law of fifty states, Canadian provinces, and United States territories and possessions, to be determined based on the happenstance of where an accident occurs. Furthermore, it is unlikely that application of Connecticut law would upset any settled expectations of the defendant. See 1 A. Widiss, supra, § 7.15, p. 312 (“the effect on [insurance] claims of the choice of law rules is almost certainly so speculative as to be a negligible factor in the actuarial determinations of the premiums that are charged by insurers for uninsured motorist insurance”). The last two factors—predictability and uniformity of result in the law and ease of application—clearly favor the use of Connecticut’s law, not the law of whatever state, possession or province an accident happens to occur in.
      I do not agree with the majority opinion that § 145 of the Restatement has any application to the facts of this case. As I indicate in this opinion, I believe that the issues in this case implicate a pure contractual question, but there is a colorable argument that there is a mixed question of contract and tort law. Nevertheless, I cannot see how the issues raised by this case could be understood to involve a pure torts problem, and therefore I believe that § 145, setting out principles applicable to pure torts problems, is wholly inapplicable.

       The dissent in Continental Ins. Co. argued persuasively: “I do not believe that the legislature, in defining the obligation of an insurer for the purpose of underinsured motorist coverage, intended to impose on the courts as well as the insured the burden of litigating each claim to an ultimate judgment unless the liability carrier pays the full amount of its coverage by way of settlement. The majority opinion does not suggest any possible benefit that can flow from such a requirement. In all probability, the legislature intended simply to limit the insurer’s obligation by allowing a deduction from the value of the underinsured motorist claim for the amount of liability insurance available.” Continental Ins. Co. v. Cebe-Habersky, supra, 214 Conn. 215 (Shea, J., dissenting).

       The majority claims that the application of Connecticut’s no-fault threshold to this case would provide the plaintiff with “an enhanced right of recovery, beyond the recovery that would have been available had the tortfeasor maintained sufficient insurance.” I agree with the majority that, had the plaintiff sued a fully insured tortfeasor under otherwise identical circumstances, New York’s higher no-fault threshold would have barred recovery against the tortfeasor. Nevertheless, the majority loses sight that the rights afforded to the plaintiff are pursuant to a contract of insurance for which the plaintiff paid a premium to the defendant, and in all likelihood the premium was calculated with reference to Connecticut’s no-fault threshold, not that of New York. See footnote 3. The plaintiff has paid for the insurance coverage and is entitled to it.